Indemnification and Contribution. (a) The Company agrees to hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party. (b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. (c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim. (d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim. (e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter. (f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 6 contracts
Sources: Dealer Manager Agreement (Cytori Therapeutics, Inc.), Dealer Manager Agreement (Cytori Therapeutics, Inc.), Dealer Manager Agreement (Atossa Genetics Inc)
Indemnification and Contribution. (a) The Company agrees to will indemnify and hold harmless and indemnify Maxim and each Underwriter, its directors, officers, agents, affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of either Section 20(a) 15 of the Act or Section 20 of the Exchange Act) Maxim or any of such affiliates Act from and against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter, director, officer, agent, affiliate or controlling person may become subject, under the Securities Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement, or any amendment or supplement thereto, in including any other solicitation material used by information deemed to be a part thereof pursuant to Rule 430B under the Company or authorized by it for use in connection with the Rights OfferingAct, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, the Disclosure Package or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (includingwill reimburse each Underwriter, but not limited todirector, officer, agent, affiliate or controlling person for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any it in connection with investigating or defending against such loss, claim, damage, liability or expense pursuant action; provided, however, that the Company shall not be liable in any such case to the preceding sentence which has been determined extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in a final judgment the Registration Statement, any preliminary prospectus or the Prospectus or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by a court of competent jurisdiction you, or by any Underwriter through you, specifically for use in the preparation thereof. The indemnity agreement set forth in this Section 6(a) shall be in addition to have resulted directly from willful misconduct or gross negligence on any liabilities that the part of any indemnified partyCompany may otherwise have.
(b) The Dealer-Manager shall Each Underwriter severally and not jointly will indemnify and hold harmless the Company, its officersdirectors, directors and employees, each of its directors officers who sign the Registration Statement and each Personperson, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any losslosses, claimclaims, damage damages or liability, joint or several, or any action in respect thereof, liabilities to which the Company or any Company, such director, officer or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such losslosses, claimclaims, damage, liability damages or action arises liabilities (or actions in respect thereof) arise out of, of or is are based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Registration Statement, or in any such amendment thereto, or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), but or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any preliminary prospectus or the Prospectus or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by you, or by any Underwriter through you, specifically for use in the preparation thereof; and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredaction. The indemnity agreement set forth in this Section 6(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure omission so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 11such subsection. In case any such lawsuit, claim or proceeding action shall be brought against any indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in and, to the extent that it shall wish, jointly with any other indemnifying party, similarly notified, to assume the defense thereof, with counsel satisfactory to such lawsuit, claim or proceedingindemnified party, and, after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense of thereof, the indemnifying party shall not be liable to such lawsuit, claim indemnified party under such subsection for any legal or proceeding with counsel of its choice at its expense; provided, however, that other expenses subsequently incurred by such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding, such investigation. The indemnified party shall will have the right to employ separate its own counsel in any such action, but the fees, expenses and to participate in the defense other charges of such lawsuit, claim or proceeding, and counsel will be at the indemnifying party shall bear the reasonable fees, costs and expenses expense of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; unless (ii1) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an employment of counsel by the indemnified party and has been authorized in writing by the indemnifying party, and such (2) the indemnified party shall have has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or to other indemnified parties which that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party shall will not have the right to direct the defense of such action on behalf of the indemnified party); ) or (iii4) the indemnifying party shall has not have in fact employed counsel satisfactory to such indemnified party, in assume the exercise defense of such indemnified party’s reasonable judgment, to represent such indemnified party action within a reasonable time after receiving notice of the institution commencement of any such lawsuitthe action, claim or proceeding; or (iv) in each of which cases the indemnifying party shall authorize such indemnified party to employ separate reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying partyparty or parties. The foregoing indemnification commitments It is understood that the indemnifying party or parties shall apply whether not, in connection with any proceeding or not related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all such indemnified party is a formal party to any or parties. All such lawsuitfees, claim or proceeding. The disbursements and other charges will be reimbursed by the indemnifying party shall promptly as they are incurred. An indemnifying party will not be liable for any settlement of any lawsuit, action or claim or proceeding effected without its written consent (which consent will not be unreasonably withheld), but if settled with such consent, the . No indemnifying party agreesshall, subject without the prior written consent of each indemnified party, settle or compromise or consent to the provisions entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 116 (whether or not any indemnified party is a party thereto), to indemnify the unless such settlement, compromise or consent includes an unconditional release of each indemnified party from and against any loss, damage all liability arising or liability by reason that may arise out of such settlement. The Company agrees to notify Maxim promptlyclaim, action or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximproceeding.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held 6 is unavailable under subsection (a) or (b) above to be unavailable from any indemnifying party or is insufficient to hold harmless a party that would have been an indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate party under subsection (a) or (b) above (“Indemnified Party”) in respect of any losses, claims, damagesdamages or liabilities (or actions in respect thereof) referred to therein, liabilities and expenses then each party that would have been an indemnifying party thereunder (“Indemnifying Party”) shall, in lieu of indemnifying such Indemnified Party, contribute to the nature contemplated amount paid or payable by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case Indemnified Party as a result of such losses, claims, damages, damages or liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act (or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyactions in respect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering oroffering of the Bonds. If, if such however, the allocation provided by the immediately preceding sentence is not permitted by applicable lawlaw or if the Indemnified Party failed to give the notice required under subsection (c) above, then each Indemnifying Party shall contribute to such amount paid or payable by such Indemnified Party in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of total underwriting discounts and commissions received by the Dealer-Manager Underwriters, in each case as set forth in the table on the cover page of the Prospectus which is filed pursuant to Rule 424 under the Act referred to in Section 6 hereof actually received by the Dealer-Manager2(a) hereof. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(fsubsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Sectionsubsection (d). The aggregate amount paid or payable by an Indemnified Party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions in respect thereof) referred to above in this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party Indemnified Party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue action or alleged untrue statement or omission or alleged omissionclaim (which shall be limited as provided in subsection (c) above if the Indemnifying Party has assumed the defense of any such action in accordance with the provisions thereof). Notwithstanding the provisions of this Section 11: subsection (i) the Dealer-Manager d), no Underwriter shall be required to contribute any amount in excess of the fees actually underwriting discounts received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person it. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 116 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager director, officer, agent and affiliate of an Underwriter, and to each person, if any, who controls any Underwriter within the meaning of Section 15 the Act; and the obligations of the Securities Act or Underwriters under this Section 20 6 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Exchange Act shall have Company, to each officer of the same rights Company who has signed the Registration Statement and to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 6 contracts
Sources: Underwriting Agreement (South Carolina Electric & Gas Co), Underwriting Agreement (South Carolina Electric & Gas Co), Underwriting Agreement (South Carolina Electric & Gas Co)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Purchaser, each Holder, each underwriter, if any, who participates in an offering of Preference Registrable Securities, their respective affiliates, and indemnify Maxim their respective directors, officers, employees, agents and its affiliates and each Person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (parties within the meaning of Section 20(a) 15 of the Securities Act or Section 20 of the Exchange ActAct as follows:
(i) Maxim or any of such affiliates from and against any and all (A) lossesloss, claimsliability, damages claim, damage and liabilities expense whatsoever, under the Securities Act or otherwise (as incurred or suffered)incurred, arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents any Preference Registration Statement (or any amendment or supplement thereto) pursuant to which Preference Registrable Securities were registered under the 1933 Act, in any other solicitation material used including all documents incorporated therein by the Company or authorized by it for use in connection with the Rights Offeringreference, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading;
(other than statements ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or omissions any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever, in each case, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; PROVIDED that (subject to Section 5(d) below) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including the reasonable fees and disbursements of one counsel chosen by MGPE), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any court or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) of this Section 5(a); PROVIDED, HOWEVER, that this indemnity agreement does not apply to any loss, liability, claim, damage or expense to the extent (i) arising out of an untrue statement or omission or alleged untrue statement or omission (A) made in or omitted from a preliminary Prospectus or Preference Registration Statement and corrected or included in a subsequent Prospectus or Preference Registration Statement or any amendment or supplement thereto made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services written information furnished to the Company with respect to by the Rights OfferingSelling Holders of Preference Registrable Securities, and any Purchaser, any Holder, or any underwriter expressly for use in the Preference Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) or (B) all reasonable expenses (includingresulting from the use of the Prospectus during a period when the use of the Prospectus has been suspended for sales thereunder in accordance with Sections 2.1(b), but not limited to2.1(c), any and all reasonable legal expenses) incurred 2.3, 2.4 or 2.6 hereof, PROVIDED, in connection with investigatingeach case, preparing to defend or defending any lawsuit, claim that Holders received prior notice of such suspension or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified partyunavailability.
(b) The Dealer-Manager shall In the case of any registration of Preference Registrable Securities, each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, its officerseach Purchaser, each underwriter, if any, who participates in an offering of Preference Registrable Securities and the other Selling Holders and each of their respective directors and employees, officers (including each officer of its directors the Company who signed the Preference Registration Statement) and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors Purchaser, any underwriter or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company Selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of against any and all loss, liability, claim, damage and expense described in the Company who signed indemnity contained in Section 5(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and directors in conformity with written information furnished to the Company by such Holder expressly for use in the Preference Registration Statement (or any amendment thereto), or the Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER, that no such Holder shall be liable for any claims hereunder in excess of the Companyamount of net proceeds received by such Holder from the sale of Preference Warrants and Preference Registrable Securities pursuant to such Preference Registration Statement.
(c) as incurred to In case any action shall be commenced involving any Person in respect of which the Company and Maxim indemnity may be subjectsought pursuant to either paragraph (a) or (b) above, such Person (the "INDEMNIFIED PARTY") shall give notice as promptly as reasonably practicable to each Person against whom such indemnity may be sought (the "indemnifying party"), but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; PROVIDED, HOWEVER, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying party or parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in 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. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 5 (whether or not the indemnified parties are actual or potential parties thereof), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) 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 5(a)(ii) hereof 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.
(e) If the indemnification provided for in any of the indemnity provisions set forth in this Section 5 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, fault of such indemnifying party or parties on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, indemnified party or parties on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages, liabilities damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, fault of such indemnifying party or parties on the one hand, and Maxim, such indemnified party or parties on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, hand shall be determined by reference to, among other things, whether the any such untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company such indemnifying party or Maxim (which consists solely and exclusively of the Dealer-Manager Information) parties or such indemnified party or parties and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, the Purchaser and the Dealer-Manager Holders of the Preference Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 11(f) 5 were determined by pro rata allocation (even if the Selling Holders of Preference Registrable Securities were treated as one entity, and the Holders were treated as one entity, for such purpose) or by any other another method of allocation which does not take account of the equitable considerations referred to above in this SectionSection 5. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 5 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or an governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 115, each Person controlling Person, if any, who controls a Dealer-Manager Purchaser or Holder within the meaning of this Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-ManagerPurchaser or Holder, and each director of the Company, each officer of the Company who signed the Preference Registration Statement, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company Act shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 5 contracts
Sources: Preference Warrant Registration Rights Agreement (Chase Cheryl A), Preference Warrant Registration Rights Agreement (Chase Arnold L), Preference Warrant Registration Rights Agreement (Darland Trust)
Indemnification and Contribution. (a) The Company agrees to hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless each Holder of the Company, its officers, directors and employeesRegistrable Securities covered by a registration, each of its directors and each Personother person, if any, who controls the Company such Holder within the meaning of the Securities Act, with respect to which such registration, qualification or compliance that has been effected pursuant to Section 2 hereof, and each underwriter, if any, and each person who controls any underwriter of the Registrable Securities held by or issuable to such Holder from and against any lossall claims, claimlosses, damage expenses, damages and liabilities (or liability, joint or several, or any action actions in respect thereof, to which the Company thereto) arising out of or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: upon (i) any untrue statement (or alleged untrue statement statement) of a material fact contained (A) in any Offer Documentsprospectus, offering circular or in other document (including any related registration statement, notification or the like) incident to any such amendment registration, qualification or supplementcompliance, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission (or alleged omission omission) to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but or (iii) any violation by the Company of any rule or regulation promulgated under the Securities Act or any state securities law applicable to the Company and relating to action or inaction required by the Company in connection with any such registration, qualification or compliance, and will reimburse each such Holder, each of its officers, directors, manager, members and partners, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any reasonable legal and other expenses reasonably incurred by it in connection with investigating, defending or settling any such claim, loss, damage, liability or action; provided, however, that the indemnity agreement contained in this Section 2.6 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), and provided, further, that the Company will not be liable in any such case solely if and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon the Company’s reliance on an untrue statement or alleged untrue statement or omission or alleged omission was so made in conformity with information furnished by any such Holder, any such underwriter or any such controlling person in writing specifically for use in such registration statement or prospectus and the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability (or action in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission in such registration statement, which untrue statement or alleged untrue statement or omission or alleged omission is completely corrected in an amendment or supplement to the registration statement and the undersigned indemnitees thereafter fail to deliver or cause to be delivered such registration statement as so amended or supplemented prior to or concurrently with the sale of the Registrable Securities to the person asserting such loss, claim, damage or liability (or actions in respect thereof) or expense after the Company has furnished the undersigned with the same.
(b) Each Holder of Registrable Securities covered by a registration statement shall, severally and not jointly, indemnify and hold harmless the Company, each of its directors and officers, each underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company within the meaning of the Securities Act, and each other such Holder, each of its officers, directors, managers, members and partners and each person controlling such other Holder, against all claims, losses, expenses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company, such other Holders, such directors, officers, mangers, members, partners, persons or underwriters for any reasonable legal or any other expenses incurred in connection with investigating, defending or settling any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information furnished to the Company and by an instrument duly executed by such Holder specifically for use therein; provided, however, the total amount for which any Holder shall be liable under this Section 2.6(b) shall not in any event exceed the aggregate proceeds received by such director, officer or controlling Person for any legal or other expenses reasonably incurred Holder from the sale of Registrable Securities held by the Company or any such director, officer or controlling Person Holder in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredregistration.
(c) If Each party entitled to indemnification under Section 2.6 hereof (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any lawsuit, claim or proceeding is brought against any indemnified party in respect of as to which indemnification indemnity may be sought against sought, and shall permit the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, Indemnifying Party to assume the defense of any such lawsuit, claim or proceeding with counsel of its choice at its expense; any litigation resulting there from, provided, howeverthat counsel for the Indemnifying Party, that such counsel who shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume conduct the defense of such lawsuit, claim or proceedinglitigation, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen be approved by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; Indemnified Party (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party whose approval shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with and the Indemnified Party may participate in such consentdefense at such party’s expense, and provided, further, that the indemnifying party agreesfailure of any Indemnified Party to give notice as provided herein, subject shall not relieve the Indemnifying Party of its obligations hereunder, unless such failure resulted in actual detriment to the provisions of this Section 11Indemnifying Party. No Indemnifying Party, to indemnify in the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion defense of any lawsuit, such claim or proceeding against litigation, shall, except with the Companyconsent of each Indemnified Party, consent to entry of any of its officers judgment or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a lawsuit, release from all liability in respect to such claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximlitigation.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any Holder of Registrable Securities exercising rights under this Agreement, or any controlling person of any such holder, makes a claim for indemnification pursuant to Section 2.6 hereof but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that Section 2.6 hereof provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any such selling Holder or any such controlling person in circumstances for which indemnification is provided under Section 2.6 hereof; then, and in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereundereach such case, the Company, on the one hand, Company and Maxim, on the other hand, shall such Holder will contribute to the aggregate losses, claims, damages, damages or liabilities and expenses to which they may be subject (after contribution from others) in such proportion so that such Holder is responsible for the portion represented by the percentage that the public offering price of its Registrable Securities offered by the nature contemplated registration statement bears to the public offering price of all securities offered by such indemnification provision (including any investigation, legal and other expenses incurred in connection withregistration statement, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Personsis responsible for the remaining portion; provided, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subjectthat, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: case, (iA) the Dealer-Manager shall no such Holder will be required to contribute any amount in excess of the fees actually received public offering price of all such Registrable Securities offered by the Dealer-Manager from the Company in connection with the Rights Offering it pursuant to such registration statement and (iiB) no Person person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person person or entity who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 5 contracts
Sources: Registration Rights Agreement (TK Star Design, Inc.), Registration Rights Agreement (Texas Rare Earth Resources Corp.), Registration Rights Agreement (Texas Rare Earth Resources Corp.)
Indemnification and Contribution. (a) The Company agrees to and Advanta, jointly and severally, will indemnify and hold harmless each Underwriter, its partners, directors and indemnify Maxim officers and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates , from and against (i) any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter or any such controlling person may become subject, under the Securities Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: upon (ix) any an untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement or the Prospectus, or any amendment or supplement thereto, in or any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offeringrelated preliminary prospectus, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (iiy) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading, but and will promptly reimburse each Underwriter, their respective directors and officers and each person who controls the Underwriter within the meaning of Section 15 of the Act, for any legal or other expenses reasonably incurred by any Underwriter and such other indemnified persons in each connection with investigating, preparing or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company and Advanta shall not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement or the Prospectus in reliance upon and in conformity with the Underwriters' Information.
(b) Each Underwriter will severally and not jointly indemnify and hold harmless the Company and Advanta, their respective directors and officers and each person, if any who controls the Company or Advanta, as the case may be, within the meaning of Section 15 of the Act, against (i) any losses, claims, damages or liabilities, joint or several, to which the Company, Advanta or such indemnified person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (x) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus, or (y) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading, in each case to the extent, but only to the extent, that, with respect to the Underwriters, such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager InformationUnderwriters' Information and will reimburse any legal or other expenses reasonably incurred by the Company and Advanta in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; and shall will reimburse the Company and any such directorAdvanta, officer their respective directors and officers and each person who controls the Company or controlling Person Advanta within the meaning of Section 15 of the Act, for any legal or other expenses reasonably incurred by the Company or any Company, Advanta and such director, officer or controlling Person other indemnified persons in connection with investigating investigating, preparing or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingcommencement thereof; provided, however, that the failure so to notify the an indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 8 except to the extent that it has been materially prejudiced in any material respect by such failure; and provided further, however, that the failure and in to notify any event indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 118. In case any such lawsuit, claim or proceeding action shall be brought against any indemnified party and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written notice from to the extent that it shall wish, jointly with any other indemnifying party to such indemnified partysimilarly notified, to assume the defense of such lawsuitthereof, claim or proceeding with counsel of its choice at its expensereasonably satisfactory to such indemnified party (who may be counsel to the indemnifying party); provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) if the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or been advised in addition to those available writing (with a copy to the indemnifying party) by counsel that representation of such indemnified party (in which case and the indemnifying party is inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them, the indemnified party or parties shall not have the right to direct the defense of select separate counsel to defend such action on behalf of such indemnified party or parties. It is understood that the indemnifying party shall, in connection with any such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys together with appropriate local counsel at any time from all indemnified parties not having actual or potential differing interests with any other indemnified party. The indemnifying party will not be liable for any settlement entered into without its consent and will not be liable to such indemnified party under this Section 8 for any legal or other expenses incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party); party shall have employed separate counsel in accordance with the proviso to the next preceding sentence, (iiiii) the indemnifying party shall not have employed counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of commencement of the institution of any such lawsuit, claim or proceeding; action or (iviii) the indemnifying party shall authorize such has authorized the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party; and provided that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). The foregoing indemnification commitments shall apply whether or not No indemnifying party shall, without the prior written consent of the indemnified party is a formal party to any such lawsuitparty, claim or proceeding. The indemnifying party shall not be liable for effect any settlement of any lawsuitpending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with unless such consent, the indemnifying party agrees, subject to the provisions settlement includes an unconditional release of this Section 11, to indemnify the such indemnified party from and against any loss, damage or all liability by reason on claims that are the subject matter of such settlement. The Company agrees to notify Maxim promptlyproceeding and does not include a statement as to, or cause Maxim an admission of, fault, culpability or failure to be notified promptly, of the assertion act by or on behalf of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held 8 is unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderunder subsection (a) or (b) above in respect of any losses, the Companyclaims, on the one handdamages or liabilities (or actions in respect thereof) referred to therein, and Maxim, on the other hand, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred or actions or proceedings in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company and Advanta on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering oroffering of the Notes. If, if such however, the allocation provided by the immediately preceding sentence is not permitted by applicable lawlaw or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company and Advanta on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Company and Advanta on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Notes purchased under this Agreement (before deducting expenses) received by the Company bears and Advanta bear to (y) the fees of total underwriting discounts and commissions received by the Dealer-Manager Underwriters with respect to the Notes purchased under this Agreement, in each case as set forth in Section 6 hereof actually received by the Dealer-Managertable on the cover page of the Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of Advanta on the Dealer-Manager Information) one hand or the Underwriters on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, Advanta and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Sectionsubsection (d). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions or proceedings in respect thereof) referred to above in this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue action or alleged untrue statement or omission or alleged omissionclaim. Notwithstanding the provisions of this Section 11: subsection (i) the Dealer-Manager d), no Underwriter shall be required obligated to contribute any amount in excess of the fees actually received underwriting discount applicable to the Notes purchased by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person such Underwriter under this Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The Underwriters' obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and Advanta under this Section 118 shall be in addition to any liability which the Company and Advanta may otherwise have and shall extend, upon the same term and conditions, to each Person controlling a Dealer-Manager person, if any, who controls any Underwriter within the meaning of Section 15 the Act; and the obligations of the Securities Act or Underwriters under this Section 20 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Exchange Act shall have Company or Advanta who has signed the same rights Registration Statement and to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company or Advanta within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 5 contracts
Sources: Underwriting Agreement (Advanta Business Receivables Corp), Underwriting Agreement (Advanta Business Receivables Corp), Underwriting Agreement (Advanta Business Receivables Corp)
Indemnification and Contribution. (a) The Company Issuer agrees to indemnify and hold harmless each Agent and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any each person who controls such affiliates and any Person controlling (Agent within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject, under the Securities Act, the Exchange Act or otherwise other Federal or State statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents registration statement relating to the Registered Securities as originally filed or in any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights preliminary prospectus or the Rights Shares Prospectus, or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and agrees to reimburse each Agent for any legal or other expenses reasonably incurred by such Agent in each connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that (i) the Issuer will not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission was made in any of such documents in reliance upon and in conformity with written information furnished to the Dealer-Manager Information, and shall reimburse the Company and Issuer by any such director, officer or controlling Person Agent specifically for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person use in connection with investigating the preparation thereof and (ii) such indemnity with respect to any preliminary prospectus or defending the Prospectus shall not inure to the benefit of any Agent (or preparing to defend against any person controlling such Agent) through which the person asserting any such loss, claim, damagedamage or liability purchased the Securities which are the subject thereof if such person did not receive a copy of the Prospectus (or the Prospectus as so amended or supplemented), excluding documents incorporated therein by reference, at or prior to the earlier of the confirmation of the sale of such Securities or the delivery of the Securities to such person in any case where such delivery is required by the Act and the untrue statement or omission of a material fact contained in any preliminary prospectus or the Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented prior to the confirmation of the sale of such Securities to such person). This indemnity agreement will be in addition to any liability which the Issuer may otherwise have.
(b) Each Agent agrees to indemnify and hold harmless the Issuer, each of its directors, each of its officers who signed the Registration Statement or action any amendment thereto, and each person who controls the Issuer within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Issuer to such expenses are incurredAgent, but only with reference to written information relating to such Agent furnished to the Issuer by such Agent specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which such Agent may otherwise have.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 117, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 117. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party party, and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuittherein, claim or proceeding, and, after and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuitthereof, claim or proceeding with counsel of its choice at its expensesatisfactory to such indemnified party; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) if the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party, the indemnified party (in which case the indemnifying party or parties shall not have the right to direct select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified partyparty of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the Agents in the case of subparagraph (a); , representing the indemnified parties under subparagraph (iiia) who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of commencement of the institution of any such lawsuit, claim or proceeding; action or (iviii) the indemnifying party shall authorize such has authorized the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments ; and except that, if clause (i) or (iii) is applicable, such liability shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, only in respect of the assertion of any lawsuit, claim counsel referred to in such clause (i) or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximiii).
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) of this Section 11 7 is due in accordance with its terms but is for any reason held by a court to be unavailable from any indemnifying party the Issuer on grounds of policy or is insufficient to hold harmless a party indemnified thereunderotherwise, the Company, on the one hand, Issuer and Maxim, on the other hand, each Agent shall contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred in connection with investigating or defending same) to which the Issuer and such Agents may be subject in such proportion so that each Agent is responsible for that portion represented by the percentage that the sum of aggregate commissions received by such indemnified party Agent pursuant to Section 3(c) hereof in investigatingconnection with the sale of the Securities to which such loss, preparing claim, damage or defending against liability relates to the aggregate principal amount of such Securities and the Issuer is responsible for the balance; provided, however, that (y) in no case shall any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall Agent be required to contribute responsible for any amount in excess of the fees actually commissions received by the Dealer-Manager from the Company in connection with the Rights Offering it for such Securities to which such loss, claim, damage or liability relates, and (iiz) no Person guilty of person found liable for fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was found not guilty of liable for such fraudulent misrepresentation. For purposes of this Section 117, each Person controlling a Dealer-Manager person who controls any Agent within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-ManagerAgent, and each Person, if any, person who controls the Company Issuer within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, each officer of the Company Issuer who shall have signed the Registration Statement or any amendment thereto, and each director of the Company Issuer shall have the same rights to contribution as the CompanyIssuer, subject in each case to clauses clause (i) and (iiy) of the immediately preceding sentencethis paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or partiesparties under this paragraph (d), notify each such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have hereunder or otherwise than under this Section 11(f) or otherwiseparagraph (d).
Appears in 5 contracts
Sources: Agency Agreement (International Business Machines Corp), Agency Agreement (International Business Machines Corp), Agency Agreement (Ibm Credit Corp)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) (i) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by registration statement for the Company or authorized by it for use in connection with registration of the Rights Offering, Securities as originally filed or in any blue sky application amendment thereof, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the an omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but or (ii) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact, in light of the circumstances in which it was made, or an omission or alleged omission to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in any Preliminary Prospectus, the Final Prospectus, or in any amendment or supplement thereto, or in any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by or on behalf of any Underwriter through the Representatives specifically for inclusion therein.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers, and shall reimburse each person who controls the Company and any such directorwithin the meaning of either the Act or the Exchange Act, officer or controlling Person for any legal or other expenses reasonably incurred by to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in Section 8(a) above. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that (i) the statement set forth on the cover page regarding delivery of the Securities and (ii) under the heading “Underwriting,” (A) the sentences related to concessions and reallowances and (B) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredIssuer Free Writing Prospectus.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in such lawsuit, claim or proceeding, and, after written notice from any action for which indemnification is sought (in which case the indemnifying party to such shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party, to assume the defense of such lawsuit, claim party or proceeding with counsel of its choice at its expenseparties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party’s election of to appoint counsel to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the actual or potential defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); , (iii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; action or (iv) the indemnifying party shall authorize such the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement action) unless such settlement, compromise or consent includes an unconditional release of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the each indemnified party from and against any loss, damage or all liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuitsuch claim, claim action, suit or proceeding against it arising out and does not include a statement as to, or admission of, fault, culpability or failure to act on behalf of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid In the event that the indemnity provided in paragraph (a) or payable by an indemnified party as a result (b) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 8 is for any reason held to be unavailable from any indemnifying unenforceable by an indemnified party or is insufficient to hold harmless a party indemnified thereunderunder paragraph (a) or (b) of this Section 8, although applicable in accordance with its terms (including the requirements of Section 8(c) above), the Company, on Company and the one hand, and Maxim, on the other hand, shall Underwriters severally agree to contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and or other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit with investigating or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companydefending same) as incurred (collectively “Losses”) to which the Company and Maxim one or more of the Underwriters may be subject, subject in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, by the Underwriters on the other hand, from the Rights Offering oroffering of the Securities; provided, if however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder; provided, further, that each Underwriter’s obligation to contribute to Losses hereunder shall be several and not joint. If the allocation provided by the immediately preceding sentence is not permitted by applicable lawunavailable for any reason, the Company and the Underwriters severally shall contribute in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, of the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company, on the one hand, and Maxim, on the other hand, Company shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually it, and benefits received by the Dealer-Manager. The relative fault of Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Company, on the one hand, and Maxim, on the other hand, Final Prospectus. Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied provided by the Company on the one hand or Maxim (which consists solely and exclusively the Underwriters on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionabove. Notwithstanding the provisions of this Section 11: paragraph (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 118, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses the applicable terms and conditions of this paragraph (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwised).
Appears in 5 contracts
Sources: Underwriting Agreement (Baltimore Gas & Electric Co), Underwriting Agreement (Baltimore Gas & Electric Co), Underwriting Agreement (Baltimore Gas & Electric Co)
Indemnification and Contribution. (a) The Company agrees to Depositor and HMFC shall, jointly and severally, indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Securities Act or Section 20 of the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter or such controlling person may become subject under the Securities Act or otherwise, to the extent such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the Depositor or HMFC in Section 2 hereof,
(ii) any untrue statement or alleged untrue statement of any material fact contained or incorporated in the Registration Statement, the Issuer Information or the Prospectus or any amendment or supplement thereto, or
(iii) the omission or alleged omission to state in the Registration Statement, the Issuer Information or the Prospectus or any amendment or supplement thereto a material fact required to be stated therein or necessary to make the statements therein, not misleading, and will reimburse, as incurred, each such indemnified party for any legal or other costs or expenses reasonably incurred by it in connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; provided, however, that the Depositor and HMFC will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Issuer Information or the Prospectus or any amendment or supplement thereto in the Underwriters’ Information; provided, further, that the Depositor and HMFC shall not be liable to any Underwriter or any of the directors, officers, employees and agents of an Underwriter and each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect to any loss, claim, damage or liability that results from the fact that the Underwriter sold Notes to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, if delivery thereof was required, a copy of the Prospectus or the Prospectus as then amended or supplemented, whichever is most recent, if the Depositor has previously furnished copies thereof to such Underwriter within a reasonable time period prior to such confirmation. The indemnity provided for in this Section 10 shall be in addition to any liability which the Depositor and HMFC may otherwise have. The Depositor and HMFC will not, without the prior written consent of the Representative, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (as incurred whether or sufferednot the Representative or any person who controls the Representative is a party to such claim, action, suit or proceeding), unless such settlement, compromise or consent (i) includes an unconditional release of all of the Underwriters and such controlling persons from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or admission of, fault, culpability or a failure to act by or on behalf of any Underwriter or controlling person.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless each of the Depositor and HMFC, each of its directors and officers and each person, if any, who controls the Depositor or HMFC within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Depositor, HMFC or any such director, officer or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: upon (i) any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Preliminary Prospectus, any Free Writing Prospectus or the Prospectus Supplement (or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or the alleged omission to state in the Preliminary Prospectus, any Offer Documents, Free Writing Prospectus or in the Prospectus Supplement (or any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any supplement thereto) a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Underwriters’ Information, and shall reimburse the Company and any such directorwill reimburse, officer or controlling Person for as incurred, any legal or other expenses reasonably incurred by the Company Depositor, HMFC or any such director, officer or controlling Person person in connection with investigating investigating, defending against or defending or preparing to defend against appearing as a third-party witness in connection with any such loss, claim, damage, liability or any action as such expenses in respect thereof. The remedies provided for in this Section 10 are incurrednot exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(c) If In case any lawsuitproceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to paragraph (a) or (b) of this Section 10, claim or proceeding such person (for purposes of this paragraph (c), the “indemnified party”) shall, promptly after receipt by such party of notice of the commencement of such action, notify the person against whom such indemnity may be sought (for purposes of this paragraph (c), the “indemnifying party”), but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party under this Section 10. In case any such action is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11party, such indemnified party shall promptly notify and it notifies the indemnifying party of the commencement of thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such lawsuit, claim or proceedingindemnified party (which may be counsel to such indemnifying party if otherwise reasonably acceptable to the indemnified party); provided, however, that if the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced defendants in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case party, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party); (iii) party or parties. After notice from the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in party of its election so to assume the exercise defense of any such indemnified party’s reasonable judgment, to represent action and approval by such indemnified party within a reasonable time after notice of the institution of any counsel appointed to defend such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consentaction, the indemnifying party agrees, subject will not be liable to the provisions of such indemnified party under this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, 10 for any legal or other expenses reasonably expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with investigatingthe defense thereof, preparing unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to defend the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel in each applicable local jurisdiction) in any one action or defending any separate but substantially similar actions arising out of the same general allegations or circumstances, designated in writing by the Representative in the case of paragraph (a) of this Section 10, representing the indemnified parties under such paragraph (a) who are parties to such action or claimactions), (ii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party, (iii) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest or (iv) the indemnifying party has elected to assume the defense of such proceeding but has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified parties. All fees and expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they are incurred. After such notice from the indemnifying party to such indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the consent of the indemnifying party. No indemnifying party shall, without the 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 a party and indemnification could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(ed) The foregoing rights to indemnification and contribution shall be In circumstances in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution indemnity agreement provided for under in the Engagement Letter.
preceding paragraphs of this Section 10 is unavailable or insufficient, for any reason, to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (f) In or actions in respect thereof), each indemnifying party, in order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, just and Maxim, on the other handequitable contribution, shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred or actions in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect (i) the relative benefits received by the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, from the Rights Offering or, offering of Notes or (ii) if such the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportions as are appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, in connection with the statements or omissions which or alleged statements or omissions that resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Depositor and HMFC on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Notes (before deducting expenses) received by the Company bears to Depositor and HMFC (y) including for such purpose, the fees value of the Dealer-Manager Certificates) bear to the total discounts and commissions received by the Underwriters (the “Spread”) as set forth in Section 6 hereof actually received by the Dealer-ManagerProspectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Depositor, HMFC or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and Underwriters, the parties’ relative intentintents, knowledge, access to information and opportunity to correct or prevent such statement or omission, and any other equitable considerations appropriate in the circumstances. The Company Depositor, HMFC and the Dealer-Manager Underwriters agree that it would not be just and equitable if the amount of such contribution pursuant to this Section 11(f) were determined by pro rata or per capita allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Sectionparagraph (d). The Notwithstanding any other provision of this paragraph (d), no Underwriter shall be obligated to make contributions hereunder that in the aggregate exceed the amount by which the Spread received by it in the initial offering of such Notes, less the aggregate amount of losses, liabilities, claims, any damages and expenses incurred by an indemnified party and referred that such Underwriter has otherwise been required to above pay in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, respect of the same or any investigation or proceeding by any judicialsubstantially similar claim, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f11 (f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute hereunder are several in proportion to their respective principal amount of Notes they have purchased hereunder, and not joint. For purposes of this Section 11paragraph (d), each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and each officer director, officer, employee and agent of the Company who an Underwriter shall have signed the Registration Statement same rights to contribution as such Underwriter, and each director of the Company Depositor and HMFC, each officer of the Depositor and HMFC and each person, if any, who controls the Depositor and HMFC within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, shall have the same rights to contribution as the Company, subject in each case to clauses (i) Depositor and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseHMFC.
Appears in 4 contracts
Sources: Underwriting Agreement (Hyundai Abs Funding Corp), Underwriting Agreement (Hyundai Auto Receivables Trust 2006-B), Underwriting Agreement (Hyundai Auto Receivables Trust 2006-A)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and each Underwriter against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject (including in its capacity as an Underwriter or as a "qualified independent underwriter" within the meaning of Schedule E of the Bylaws of the NASD), under the Securities Act, the Exchange Act or otherwise otherwise, specifically including losses, claims, damages or liabilities (as incurred or suffered), actions in respect thereof) arising out of or based upon: upon (i) any breach of any representation, warranty, agreement or covenant of the Company herein contained, (ii) any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Registration Statement or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any untrue statement or alleged untrue statement of any material fact contained in order any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (including, but not limited to, agrees to reimburse each Underwriter for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of it in connection with investigating or defending any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any such loss, claim, damage, liability or expense pursuant action; provided, however, that the Company shall not be liable in any such case to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of extent that any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, such Preliminary Prospectus or the Prospectus, or any such amendment or supplement thereto, in reliance upon: , and in conformity with, written information relating to any Underwriter furnished to the Company by such Underwriter, directly or through you, specifically for use in the preparation thereof and, provided further that the indemnity agreement provided in this Section 8(a) with respect to any Preliminary Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any losses, claims, damages, liabilities or actions based upon any untrue statement or alleged untrue statement of material fact or omission or alleged omission to state therein a material fact purchased Shares, if a copy of the Prospectus (or any amendment or supplement thereto, to the extent available at the time) in which such untrue statement or alleged untrue statement or omission or alleged omission was corrected had not been sent or given to such person within the time required by the Act and the Rules and Regulations, unless such failure is the result of noncompliance by the Company with Section 4(d) hereof. The indemnity agreement in this Section 8(a) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act. This indemnity agreement shall be in addition to any liabilities that the Company may otherwise have.
(b) Subject to Section 8(f), each Selling Stockholder, severally and not jointly, agrees to indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject (including in its capacity as an Underwriter) under the Act, the Exchange Act or otherwise, specifically including losses, claims, damages or liabilities (or actions in respect thereof) arising out of or based upon (i) any breach of any representation, warranty, agreement or covenant of such Selling Stockholder herein contained, (ii) any untrue statement or alleged untrue statement of a any material fact contained (A) in the Registration Statement or any Offer Documentsamendment or supplement thereto, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but or (iii) any untrue statement or alleged untrue statement of any material fact contained in each any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in the case solely of subparagraphs (ii) and exclusively (iii) of this Section 8(b) to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany or such Underwriter by such Selling Stockholder, directly or through such Selling Stockholder's representatives, specifically for use in the preparation thereof, and agrees to reimburse each Underwriter for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that:
(i) any payment obligation of the Selling Stockholders under this Section 8(b) shall be limited to the amount of losses, claims, damages and liabilities that are not paid by the Company pursuant to Section 8(a), and any payment by the Selling Stockholders under this Section 8(b) shall not be required until after (A) compliance with the provisions of Section 8(d) with respect to the obligations of the Company under Section 8(a) and (B) demand for payment has been made by the Underwriters first upon the Company and such payment has not made by the Company within fifteen days of such demand, provided, however, that this clause (i) shall not apply with respect to any Selling Stockholder in the event and to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, in reliance upon, and in conformity with, written information relating to such Selling Stockholder furnished to the Company by such Selling Stockholder specifically for use in the preparation thereof; and
(ii) the indemnity agreement provided in this Section 8(b) with respect to any Preliminary Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any losses, claims, damages, liabilities or actions based upon any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state therein a material fact purchased Shares, if a copy of the Prospectus in which such untrue statement or alleged untrue statement or omission or alleged omission was corrected had not been sent or given to such person within the time required by the Act and the Rules and Regulations, unless such failure is the result of noncompliance by the Company with Section 4(d) hereof. The indemnity agreement in this Section 8(b) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act. This indemnity agreement shall be in addition to any liabilities that such Selling Stockholder otherwise may have.
(c) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company and each Selling Stockholder against any losses, claims, damages or liabilities, joint or several, to which the Company or such Selling Stockholder may become subject under the Act or otherwise, specifically including losses, claims, damages or liabilities (or actions in respect thereof) arising out of or based upon (i) any breach of any representation, warranty, agreement or covenant of such Underwriter herein contained, (ii) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any untrue statement or alleged untrue statement of any material fact contained in any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in the case of subparagraphs (ii) and (iii) of this Section 8(c) to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter, directly or through you, specifically for use in the preparation thereof, and agrees to reimburse the Company and any each such director, officer or controlling Person Selling Stockholder for any legal or other expenses reasonably incurred by the Company or any and each such director, officer or controlling Person Selling Stockholder in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredaction. The indemnity agreement in this Section 8(c) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each officer of the Company who signed the Registration Statement and each director of the Company, each Selling Stockholder and each person, if any, who controls the Company or either Selling Stockholder within the meaning of the Act or the Exchange Act. This indemnity agreement shall be in addition to any liabilities that each Underwriter may otherwise have.
(cd) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to under this Section 118 of notice of the commencement of any action, such indemnified party shall promptly shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceeding; provided, however, that thereof but the failure omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 118. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party party, and such indemnified party shall notify it notified the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, therein and, after to the extent that it shall elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuitthereof, claim or proceeding with counsel of its choice at its expensereasonably satisfactory to such indemnified party; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) if the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which that are different from or in addition additional to those available to the indemnifying party, the indemnified party (in which case the indemnifying party or parties shall not have the right to direct select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of the indemnifying party's election so to assume the defense of such action and approval by the indemnified partyparty of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with appropriate local counsel) approved by the indemnifying party representing all the indemnified parties under Section 8(a); , 8(b) or 8(c) hereof who are parties to such action), (iiiii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of commencement of the institution of any such lawsuit, claim or proceeding; action or (iviii) the indemnifying party shall authorize such has authorized the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments ; provided that in no event shall apply whether or not the indemnifying party be liable to such indemnified party is a formal for any legal fees or expenses in excess of reasonable legal fees and expenses. In no event shall any indemnifying party to be liable in respect of any such lawsuit, claim or proceeding. The amounts paid in settlement of any action unless the indemnifying party shall have approved the terms of such settlement; provided that such consent shall not be liable for unreasonably withheld. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any lawsuitpending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnification could have been sought hereunder by such indemnified party, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with unless such consent, the indemnifying party agrees, subject to the provisions settlement includes an unconditional release of this Section 11, to indemnify the such indemnified party from and against any loss, damage or all liability by reason on all claims that are the subject matter of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claimproceeding.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for just and equitable contribution in circumstances any action in which the a claim for indemnification provided for in is made pursuant to this Section 11 8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 8 provides for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunderindemnification in such case, all the Company, on the one hand, and Maxim, on the other hand, parties hereto shall contribute to the aggregate losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim they may be subject, subject (after contribution from others) in such proportions proportion so that, except as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 8(f) hereof, but before deducting expenses) received the Underwriters severally and not jointly are responsible pro rata for the portion represented by the Company percentage that the underwriting discount bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one handinitial public offering price, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree Selling Stockholders are responsible for the remaining portion, provided, however, that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager no Underwriter shall be required to contribute any amount in excess of the fees actually received amount by which the Dealer-Manager from underwriting discount applicable to the Company in connection with Shares purchased by such Underwriter exceeds the Rights Offering amount of damages that such Underwriter has otherwise required to pay and (ii) no Person person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraudulent misrepresentation. For purposes of The contribution agreement in this Section 118(e) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Personperson, if any, who controls any Underwriter, the Company or either Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, Act and each officer of the Company who shall have signed the Registration Statement and each director of the Company Company.
(f) The liability of each Selling Stockholder under the indemnity and contribution agreements contained in the provisions of this Section 8 shall be limited to an amount equal to the initial public offering price of any Option Shares sold by such Selling Stockholder to the Underwriters minus the amount of the underwriting discounts and commissions paid thereon to the Underwriters by such Selling Stockholder. Without limiting the foregoing, if no Option Shares are sold by the Selling Stockholders to the Underwriters, the Selling Stockholders, as such, shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have no liability under this Section 11(f8. The Company and such Selling Stockholders may agree, as among themselves and without limiting the rights of the Underwriters under this Agreement, as to the respective amounts of such liability for which they each shall be responsible.
(g) or otherwise.The parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the negotiations regarding the provisions hereof including the provisions of this Section 8, an
Appears in 4 contracts
Sources: Underwriting Agreement (Value America Inc /Va), Underwriting Agreement (Value America Inc /Va), Underwriting Agreement (Value America Inc /Va)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless the Agent, the directors, officers, employees and indemnify Maxim agents of the Agent and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (each person who controls the Agent within the meaning of Section 20(a) of either the 1933 Act, the Exchange Act) Maxim Act or any of such affiliates from and the 1940 Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities 1933 Act, the Exchange Act, the 1940 Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement, the Prospectus, or in any amendment thereof or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in each connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information furnished to the Company and any such director, officer by or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying partyAgent specifically for inclusion therein. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent This indemnity agreement will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in liability which the Company may otherwise have. Any indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 Agreement shall be deemed subject to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering requirements and (ii) no Person guilty of fraudulent misrepresentation (within the meaning limitations of Section 11(f17(i) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise1▇▇▇ ▇▇▇.
Appears in 4 contracts
Sources: Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp)
Indemnification and Contribution. (a) The Regardless of whether any _____________ are sold, the Company agrees to will indemnify and hold harmless each Underwriter, each of their respective officers and indemnify Maxim directors and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (each person who controls each Underwriter within the meaning of Section 20(a) of the Exchange 1933 Act or the 1934 Act) Maxim or any of such affiliates from and , against any and all losses, claims, damages, or liabilities (A) including the cost of any investigation, legal and other expenses incurred in connection with and amounts paid in settlement of any action, suit, proceeding or claim asserted), joint or several, to which they may become subject, under the 1933 Act, the 1934 Act or other federal or state law or regulation, at common law or otherwise, insofar as such losses, claims, damages and or liabilities whatsoever, under the Securities Act (or otherwise (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: upon an untrue statement or alleged untrue statement of a material fact contained (i) in the Registration Statement, or any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein, not misleading or (ii) in the Basic Prospectus or the Prospectus Supplement or any amendment thereto or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and will reimburse each such indemnified party for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information relating to the Underwriter furnished to the Company by such Underwriter specifically for use in connection with the preparation thereof.
(b) Regardless of whether any Certificates are sold, each Underwriter, severally and not jointly, will indemnify and hold harmless the Company, each of its officers and directors and each person, if any, who controls the Company within the meaning of the 1933 Act or the 1934 Act against any losses, claims, damages or liabilities to which they become subject under the 1933 Act, the 1934 Act or other federal or state law or regulation, at common law or otherwise, to the same extent as the foregoing indemnity, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in (i) the Offer Documents Registration Statement, or any amendment thereof or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein not misleading or in (ii) the Prospectus or the Prospectus Supplement or any amendment thereto or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information relating to the Underwriter furnished to the Company by such Underwriter specifically for use in the preparation thereof and so acknowledged in writing, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending against such loss, claim, damage, liability or action.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to paragraphs a, b and c of this Section 5, such person (hereinafter called the indemnified party) shall promptly notify the person against whom such indemnity may be sought (hereinafter called the indemnifying party) in writing thereof; but the omission to notify the indemnifying party shall not relieve such indemnifying party from any liability which it may have to any indemnified party otherwise than under such Paragraph. The indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such document proceeding any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified part shall have mutually agreed to the retention of such counsel, or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Underwriters in the case of parties indemnified pursuant to paragraph a of this Section 5 and by the Company in the case of parties indemnified pursuant to paragraphs b and e of this Section 5. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated above, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, 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 a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) Each Underwriter agrees, severally and not jointly, to provide the Company no later than the date on which the Prospectus Supplement is required to be filed pursuant to Rule 424 (or such other time as is necessary to permit timely filing as required by the Securities Exchange Commission and its rules) with a copy of any Derived Information (defined below) for filing with the Commission on Form 8-K.
(e) Each Underwriter agrees, jointly and not severally, assuming all Company-Provided Information (defined below) is accurate and complete in all material respects, to indemnify and hold harmless the Company, its respective officers and directors and each person who controls the Company within the meaning of the Securities Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement of a material fact contained in the Derived Information provided by such Underwriter, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon misleading, and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company agrees to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an reimburse each such indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company him, her or any such director, officer or controlling Person it in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect . The several obligations of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have each Underwriter under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor5(e) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights liability which any indemnified parties each Underwriter may have under common law or otherwise but have. The procedures set forth in Section 5(c) shall supersede, amend and restate, retroactively, the rights be equally applicable to indemnification, reimbursement and contribution provided for under the Engagement Letterthis Section 5(e).
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 115, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as term "Derived Information" means such Dealer-Manager, and each Personportion, if any, who controls the Company within the meaning of Section 15 of the Securities Act or information delivered to the Companies pursuant to Section 20 of 5(d) for filing with the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses Commission on Form 8-K as: (i) is not contained in the Prospectus without taking into account information incorporated therein by reference; and (ii) of does not constitute Company-Provided Information. "Company-Provided Information" means any computer tape furnished to the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but Underwriters by the omission to so notify such party or parties shall not relieve Company concerning the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseassets comprising the Trust.
Appears in 4 contracts
Sources: Underwriting Agreement (Prudential Securities Secured Financing Corp), Underwriting Agreement (Prudential Securities Secured Financing Corp), Underwriting Agreement (Prudential Securities Secured Financing Corp)
Indemnification and Contribution. (a) The Company agrees to Seller and the Bank, jointly and severally, will indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of the Act or the Exchange Act) Maxim or any Act and the respective officers, directors, agents and employees of each such affiliates from and person, against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter or such controlling person may become subject, under the Securities Act, the Exchange Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a any material fact contained in any Time of Sale Information, the Offer Documents Prospectus or any amendment or supplement theretothereto or any Form ABS-15G furnished to the Commission on ▇▇▇▇▇ with respect to the transactions contemplated by this Agreement (a “Furnished Form ABS-15G”), in any other solicitation material used data provided by the Company Seller, the Bank, the Issuer or authorized by it for use any of their affiliates to any Underwriter in connection with order to prepare the Rights OfferingIntex CDI File, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading; and will reimburse each Underwriter and each such officer, in the light of the circumstances under which they were madedirector, not misleading (other than statements employee or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) controlling person for any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors Underwriter and each Personsuch officer, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer employee or controlling Person may become subject, under the Securities Act person in connection with investigating or otherwise, insofar as defending any such loss, claim, damage, liability or action action; provided, however, that the Seller and the Bank will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of, of or is based upon: upon any such untrue statement or alleged untrue statement in or omission or alleged omission made in any such documents in reliance upon and in conformity with Underwriter Information. This indemnity agreement will be in addition to any liability which the Seller or the Bank may otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Seller and the Bank and each person, if any, who controls the Seller or the Bank within the meaning of the Act or the Exchange Act and the respective officers, directors, agents and employees of each such person, against any losses, claims, damages or liabilities to which the Seller or the Bank may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based (i) upon any untrue statement or alleged untrue statement of a any material fact contained (A) in any Offer Documentsthe Registration Statement, the Preliminary Prospectus, the Prospectus, or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering arise out of or (B) in any Blue Sky Application; or (ii) are based upon the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationIssuer, the Seller and the Bank by such Underwriter through the Representatives specifically for use therein and (ii) with regard to any investor with whom an Underwriter enters into a Contract of Sale for the Notes prior to the filing of the final Prospectus, the failure upon the part of such Underwriter to convey (within the meaning of Rule 159 under the Act) the Preliminary Prospectus to such investor at or prior to the time of the contract of sale for such Notes; provided, however, that to the extent such Preliminary Prospectus or Prospectus, as the case may be, has been amended or supplemented, such indemnity shall not inure to the benefit of the Seller or the Bank unless such amendment or supplement shall have been delivered to such Underwriter in a reasonable period of time prior to the time of such contract of sale. Each Underwriter will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company Seller or any such directorthe Bank, officer or controlling Person as applicable, in connection with investigating or defending any of the losses, claims, damages, or preparing liabilities (or actions in respect thereof) for which it has agreed to defend indemnify the Seller or the Bank, as applicable, in accordance with the foregoing. The Seller and the Bank agree with each Underwriter that the only written information furnished to the Issuer, the Seller and the Bank by the Underwriters specifically for use in the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, or the Ratings Issuer Free Writing Prospectus is the information relating to the Underwriters and the underwriting of the Notes in the second sentence of the fourth paragraph and the sixth paragraph (except for the information relating to the Depositor in the last sentence thereof) under the heading “Underwriting” in the Preliminary Prospectus or the Prospectus (“Underwriter Information”). This indemnity agreement will be in addition to any liability that each Underwriter may otherwise have.
(c) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Seller and the Bank and each person, if any, who controls the Seller or the Bank within the meaning of the Act or the Exchange Act and the respective officers, directors, agents and employees of each such person, against any losses, claims, damages or liabilities to which the Seller or the Bank may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Underwriter Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse any legal or other expenses reasonably incurred by the Issuer, the Seller or the Seller in connection with investigating or defending any such loss, claim, damage, liability or action action; provided, however, that no Underwriter will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission in any Underwriter Free Writing Prospectus (i) made in reliance upon and in conformity with any written information furnished to the related Underwriter by the Seller or the Bank expressly for use therein or (ii) as a result of any inaccurate information (including as a result of any omission therein) in the Time of Sale Information, the Prospectus or the Issuer Information which information was not corrected by information subsequently provided by the Seller or the Bank to the related Underwriter prior to the time of use of such expenses are incurredUnderwriter Free Writing Prospectus. This indemnity agreement will be in addition to any liability that each Underwriter may otherwise have.
(cd) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under clause (a), (b) or (c) of this Section 119, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 9, except to the extent that it has been materially prejudiced in any material respect by such failure and in any event shall not relieve and, provided further, that the omission and/or delay so to notify the indemnifying party will not relieve it from any other obligation or liability which it may have to such any indemnified party otherwise than under clause (a), (b) or (c) of this Section 119. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party party, and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, therein and, to the extent that it may elect by written notice, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense thereof and the appointment of satisfactory counsel, including local counsel if applicable, the indemnifying party will not be liable to such lawsuit, claim indemnified party under this Section 9 for any legal or proceeding with counsel of its choice at its expense; provided, however, that other expenses subsequently incurred by such counsel shall be satisfactory to the indemnified party in the exercise connection with defense thereof other than reasonable costs of its reasonable judgmentinvestigation. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) If the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that (i) there exists actual or potential conflicting interests between the indemnifying party and the indemnified parties, or (ii) there may be legal defenses available to it or to and/or other indemnified parties which that are different from or in addition additional to those available to the indemnifying party, the indemnified party (in which case the indemnifying party or parties shall not have the right to direct select separate counsel, including local counsel if applicable, to assert such legal defenses and to otherwise participate in the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel parties at the expense of the indemnifying party, subject to the approval of the indemnifying party (such approval not to be unreasonably withheld). The foregoing indemnification commitments shall apply whether No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or not the threatened action in respect of which any indemnified party is or could have been a formal party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any such lawsuit, claim or proceedingindemnified party. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld)written consent, but if settled with such consentconsent or if there be a final judgment for the plaintiff, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the any indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees to notify Maxim promptly, settlement or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximjudgment.
(de) The If the indemnification provided for in this Section 9 is unavailable or insufficient to hold harmless an indemnified party under this Section 9, then such indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder9, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyi) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Seller and the Bank on the one hand, hand and Maxim, the relevant Underwriter on the other hand, from the Rights Offering or, offering of the Notes or (ii) if such the allocation provided by clause (i) is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to above in clause (i) but also the relative fault of the Company, Seller and the Bank on the one hand, hand and Maxim, the relevant Underwriter on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, Seller and the Bank on the one hand, hand and Maxim, the relevant Underwriter on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears Issuer or the Seller bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-Managerrelevant Underwriter. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Issuer, the Seller or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Bank or by any Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined amount paid by pro rata allocation or by any other method of allocation which does not take account an indemnified party as a result of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 clause (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this clause (e). Notwithstanding the provisions of this clause (e), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total underwriting discounts and commissions received by it in connection with such Notes underwritten by it exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The obligation of each Underwriter under this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 9(e) shall be several and not joint.
(f) The obligations of the Securities Act or indemnifying party under this Section 20 of 9 shall be in addition to any liability which the Exchange Act indemnifying party may otherwise have and shall have extend, upon the same rights terms and conditions, to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company indemnified party within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 4 contracts
Sources: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2024-1), Underwriting Agreement (Capital One Prime Auto Receivables Trust 2023-2), Underwriting Agreement (Capital One Prime Auto Receivables Trust 2023-1)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) (i) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by registration statement for the Company or authorized by it for use in connection with registration of the Rights Offering, Securities as originally filed or in any blue sky application amendment thereof, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the an omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but or (ii) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact, in light of the circumstances in which it was made, or an omission or alleged omission to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in any Preliminary Prospectus, the Final Prospectus, or in any amendment or supplement thereto, or in any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d), and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information furnished to the Company and by or on behalf of any such director, officer or controlling Person Underwriter through the Representatives specifically for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredinclusion therein.
(cb) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall Each Underwriter severally and not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, jointly agrees to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against hold harmless the Company, any each of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Actdirectors, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Managerits officers, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, each officer of to the same extent as the foregoing indemnity from the Company who shall have signed the Registration Statement and to each director of Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company shall have by or on behalf of such Underwriter through the same rights Representatives specifically for inclusion in the documents referred to contribution as the Company, subject in each case Section 8(a) above. This indemnity agreement will be in addition to clauses (i) and (ii) of the immediately preceding sentenceany liability which any Underwriter may otherwise have. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.The
Appears in 4 contracts
Sources: Underwriting Agreement (Baltimore Gas & Electric Co), Underwriting Agreement (Baltimore Gas & Electric Co), Underwriting Agreement (Baltimore Gas & Electric Co)
Indemnification and Contribution. (a) The Company agrees to Seller and the Bank, jointly and severally, will indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of the Act or the Exchange Act) Maxim or any Act and the respective officers, directors, agents and employees of each such affiliates from and person, against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter or such controlling person may become subject, under the Securities Act, the Exchange Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a any material fact contained in any Time of Sale Information, the Offer Documents Prospectus or any amendment or supplement theretothereto or any Form ABS-15G furnished to the Commission on ▇▇▇▇▇ with respect to the transactions contemplated by this Agreement (a “Furnished Form ABS-15G”), in any other solicitation material used data provided by the Company Seller, the Bank the Issuer or authorized by it for use any of their affiliates to any Underwriter in connection with order to prepare the Rights OfferingIntex CDI File, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading; and will reimburse each Underwriter and each such officer, in the light of the circumstances under which they were madedirector, not misleading (other than statements employee or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) controlling person for any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors Underwriter and each Personsuch officer, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer employee or controlling Person may become subject, under the Securities Act person in connection with investigating or otherwise, insofar as defending any such loss, claim, damage, liability or action action; provided, however, that the Seller and the Bank will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of, of or is based upon: upon any such untrue statement or alleged untrue statement in or omission or alleged omission made in any such documents in reliance upon and in conformity with Underwriter Information. This indemnity agreement will be in addition to any liability which the Seller or the Bank may otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Seller and the Bank and each person, if any, who controls the Seller or the Bank within the meaning of the Act or the Exchange Act and the respective officers, directors, agents and employees of each such person, against any losses, claims, damages or liabilities to which the Seller or the Bank may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based (i) upon any untrue statement or alleged untrue statement of a any material fact contained (A) in any Offer Documentsthe Registration Statement, the Preliminary Prospectus, the Prospectus, or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering arise out of or (B) in any Blue Sky Application; or (ii) are based upon the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationIssuer, the Seller and the Bank by such Underwriter through the Representatives specifically for use therein and (ii) with regard to any investor with whom an Underwriter enters into a Contract of Sale for the Notes prior to the filing of the final Prospectus, the failure upon the part of such Underwriter to convey (within the meaning of Rule 159 under the Act) the Preliminary Prospectus to such investor at or prior to the time of the contract of sale for such Notes; provided, however, that to the extent such Preliminary Prospectus or Prospectus, as the case may be, has been amended or supplemented, such indemnity shall not inure to the benefit of the Seller or the Bank unless such amendment or supplement shall have been delivered to such Underwriter in a reasonable period of time prior to the time of such contract of sale. Each Underwriter will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company Seller or any such directorthe Bank, officer or controlling Person as applicable, in connection with investigating or defending any of the losses, claims, damages, or preparing liabilities (or actions in respect thereof) for which it has agreed to defend indemnify the Seller or the Bank, as applicable, in accordance with the foregoing. The Seller and the Bank agree with each Underwriter that the only written information furnished to the Issuer, the Seller and the Bank by the Underwriters specifically for use in the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, or the Ratings Issuer Free Writing Prospectus is the information relating to the Underwriters and the underwriting of the Notes in the second sentence of the fourth paragraph and the sixth paragraph (except for the information relating to the Depositor in the last sentence thereof) under the heading “Underwriting” in the Preliminary Prospectus or the Prospectus (“Underwriter Information”). This indemnity agreement will be in addition to any liability that each Underwriter may otherwise have.
(c) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Seller and the Bank and each person, if any, who controls the Seller or the Bank within the meaning of the Act or the Exchange Act and the respective officers, directors, agents and employees of each such person, against any losses, claims, damages or liabilities to which the Seller or the Bank may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Underwriter Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse any legal or other expenses reasonably incurred by the Issuer, the Seller or the Seller in connection with investigating or defending any such loss, claim, damage, liability or action action; provided, however, that no Underwriter will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission in any Underwriter Free Writing Prospectus (i) made in reliance upon and in conformity with any written information furnished to the related Underwriter by the Seller or the Bank expressly for use therein or (ii) as a result of any inaccurate information (including as a result of any omission therein) in the Time of Sale Information, the Prospectus or the Issuer Information which information was not corrected by information subsequently provided by the Seller or the Bank to the related Underwriter prior to the time of use of such expenses are incurredUnderwriter Free Writing Prospectus. This indemnity agreement will be in addition to any liability that each Underwriter may otherwise have.
(cd) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under clause (a), (b) or (c) of this Section 119, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 9, except to the extent that it has been materially prejudiced in any material respect by such failure and in any event shall not relieve and, provided further, that the omission and/or delay so to notify the indemnifying party will not relieve it from any other obligation or liability which it may have to such any indemnified party otherwise than under clause (a), (b) or (c) of this Section 119. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party party, and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, therein and, to the extent that it may elect by written notice, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense thereof and the appointment of satisfactory counsel, including local counsel if applicable, the indemnifying party will not be liable to such lawsuit, claim indemnified party under this Section 9 for any legal or proceeding with counsel of its choice at its expense; provided, however, that other expenses subsequently incurred by such counsel shall be satisfactory to the indemnified party in the exercise connection with defense thereof other than reasonable costs of its reasonable judgmentinvestigation. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) If the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that (i) there exists actual or potential conflicting interests between the indemnifying party and the indemnified parties, or (ii) there may be legal defenses available to it or to and/or other indemnified parties which that are different from or in addition additional to those available to the indemnifying party, the indemnified party (in which case the indemnifying party or parties shall not have the right to direct select separate counsel, including local counsel if applicable, to assert such legal defenses and to otherwise participate in the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel parties at the expense of the indemnifying party, subject to the approval of the indemnifying party (such approval not to be unreasonably withheld). The foregoing indemnification commitments shall apply whether No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or not the threatened action in respect of which any indemnified party is or could have been a formal party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any such lawsuit, claim or proceedingindemnified party. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld)written consent, but if settled with such consentconsent or if there be a final judgment for the plaintiff, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the any indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees to notify Maxim promptly, settlement or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximjudgment.
(de) The If the indemnification provided for in this Section 9 is unavailable or insufficient to hold harmless an indemnified party under this Section 9, then such indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder9, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyi) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Seller and the Bank on the one hand, hand and Maxim, the relevant Underwriter on the other hand, from the Rights Offering or, offering of the Notes or (ii) if such the allocation provided by clause (i) is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to above in clause (i) but also the relative fault of the Company, Seller and the Bank on the one hand, hand and Maxim, the relevant Underwriter on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, Seller and the Bank on the one hand, hand and Maxim, the relevant Underwriter on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears Issuer or the Seller bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-Managerrelevant Underwriter. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Issuer, the Seller or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Bank or by any Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined amount paid by pro rata allocation or by any other method of allocation which does not take account an indemnified party as a result of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 clause (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this clause (e). Notwithstanding the provisions of this clause (e), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total underwriting discounts and commissions received by it in connection with such Notes underwritten by it exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The obligation of each Underwriter under this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 9(e) shall be several and not joint.
(f) The obligations of the Securities Act or indemnifying party under this Section 20 of 9 shall be in addition to any liability which the Exchange Act indemnifying party may otherwise have and shall have extend, upon the same rights terms and conditions, to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company indemnified party within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 4 contracts
Sources: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2021-1), Underwriting Agreement (Capital One Prime Auto Receivables Trust 2020-1), Underwriting Agreement (Capital One Prime Auto Receivables Trust 2019-2)
Indemnification and Contribution. (a) The Company agrees to will indemnify and hold harmless each Underwriter, its directors, officers, agents and indemnify Maxim and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of either Section 20(a) 15 of the Act or Section 20 of the Exchange Act) Maxim or any of such affiliates Act from and against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter, director, officer, agent or controlling person may become subject, under the Securities Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement, or any amendment or supplement thereto, in including any other solicitation material used by information deemed to be a part thereof pursuant to Rule 430B under the Company or authorized by it for use in connection with the Rights OfferingAct, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, the Disclosure Package or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (includingwill reimburse each Underwriter, but not limited todirector, officer, agent or controlling person for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any it in connection with investigating or defending against such loss, claim, damage, liability or expense pursuant action; provided, however, that the Company shall not be liable in any such case to the preceding sentence which has been determined extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in a final judgment the Registration Statement, any preliminary prospectus or the Prospectus or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by a court of competent jurisdiction you, or by any Underwriter through you, specifically for use in the preparation thereof. The indemnity agreement set forth in this Section 6(a) shall be in addition to have resulted directly from willful misconduct or gross negligence on any liabilities that the part of any indemnified partyCompany may otherwise have.
(b) The Dealer-Manager shall Each Underwriter severally and not jointly will indemnify and hold harmless the Company, its officersdirectors, directors and employees, each of its directors officers who sign the Registration Statement and each Personperson, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any losslosses, claimclaims, damage damages or liability, joint or several, or any action in respect thereof, liabilities to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such losslosses, claimclaims, damage, liability damages or action arises liabilities (or actions in respect thereof) arise out of, of or is are based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Registration Statement, or in any such amendment thereto, or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), but or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any preliminary prospectus or the Prospectus or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by you, or by such Underwriter through you, specifically for use in the preparation thereof; and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredaction. The indemnity agreement set forth in this Section 6(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure omission so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 11such subsection. In case any such lawsuit, claim or proceeding action shall be brought against any indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in and, to the extent that it shall wish, jointly with any other indemnifying party, similarly notified, to assume the defense thereof, with counsel satisfactory to such lawsuit, claim or proceedingindemnified party, and, after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense of thereof, the indemnifying party shall not be liable to such lawsuit, claim indemnified party under such subsection for any legal or proceeding with counsel of its choice at its expense; provided, however, that other expenses subsequently incurred by such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding, such investigation. The indemnified party shall will have the right to employ separate its own counsel in any such action, but the fees, expenses and to participate in the defense other charges of such lawsuit, claim or proceeding, and counsel will be at the indemnifying party shall bear the reasonable fees, costs and expenses expense of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; unless (ii1) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an employment of counsel by the indemnified party and has been authorized in writing by the indemnifying party, and such (2) the indemnified party shall have has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or to other indemnified parties which that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party shall will not have the right to direct the defense of such action on behalf of the indemnified party); ) or (iii4) the indemnifying party shall has not have in fact employed counsel satisfactory to such indemnified party, in assume the exercise defense of such indemnified party’s reasonable judgment, to represent such indemnified party action within a reasonable time after receiving notice of the institution commencement of any such lawsuitthe action, claim or proceeding; or (iv) in each of which cases the indemnifying party shall authorize such indemnified party to employ separate reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying partyparty or parties. The foregoing indemnification commitments It is understood that the indemnifying party or parties shall apply whether not, in connection with any proceeding or not related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all such indemnified party is a formal party to any or parties. All such lawsuitfees, claim or proceeding. The disbursements and other charges will be reimbursed by the indemnifying party shall promptly as they are incurred. An indemnifying party will not be liable for any settlement of any lawsuit, action or claim or proceeding effected without its written consent (which consent will not be unreasonably withheld), but if settled with such consent, the . No indemnifying party agreesshall, subject without the prior written consent of each indemnified party, settle or compromise or consent to the provisions entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 116 (whether or not any indemnified party is a party thereto), to indemnify the unless such settlement, compromise or consent includes an unconditional release of each indemnified party from and against any loss, damage all liability arising or liability by reason that may arise out of such settlement. The Company agrees to notify Maxim promptlyclaim, action or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximproceeding.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held 6 is unavailable under subsection (a) or (b) above to be unavailable from any indemnifying party or is insufficient to hold harmless a party that would have been an indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate party under subsection (a) or (b) above (“Indemnified Party”) in respect of any losses, claims, damagesdamages or liabilities (or actions in respect thereof) referred to therein, liabilities and expenses then each party that would have been an indemnifying party thereunder (“Indemnifying Party”) shall, in lieu of indemnifying such Indemnified Party, contribute to the nature contemplated amount paid or payable by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case Indemnified Party as a result of such losses, claims, damages, damages or liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act (or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyactions in respect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering oroffering of the Bonds. If, if such however, the allocation provided by the immediately preceding sentence is not permitted by applicable lawlaw or if the Indemnified Party failed to give the notice required under subsection (c) above, then each Indemnifying Party shall contribute to such amount paid or payable by such Indemnified Party in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of total underwriting discounts and commissions received by the Dealer-Manager Underwriters, in each case as set forth in the table on the cover page of the Prospectus which is filed pursuant to Rule 424 under the Act referred to in Section 6 hereof actually received by the Dealer-Manager2(a) hereof. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(fsubsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Sectionsubsection (d). The aggregate amount paid or payable by an Indemnified Party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions in respect thereof) referred to above in this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party Indemnified Party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue action or alleged untrue statement or omission or alleged omissionclaim (which shall be limited as provided in subsection (c) above if the Indemnifying Party has assumed the defense of any such action in accordance with the provisions thereof). Notwithstanding the provisions of this Section 11: subsection (i) the Dealer-Manager d), no Underwriter shall be required to contribute any amount in excess of the fees actually underwriting discounts received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person it. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 116 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager director, officer and agent of an Underwriter, and to each person, if any, who controls any Underwriter within the meaning of Section 15 the Act; and the obligations of the Securities Act or Underwriters under this Section 20 6 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Exchange Act shall have Company, to each officer of the same rights Company who has signed the Registration Statement and to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 3 contracts
Sources: Underwriting Agreement (South Carolina Electric & Gas Co), Underwriting Agreement (South Carolina Electric & Gas Co), Underwriting Agreement (South Carolina Electric & Gas Co)
Indemnification and Contribution. (a) The Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless the Placement Agent, its managers, officers, directors, employees, agents and indemnify Maxim counsel, and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls the Placement Agent within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and , against any and all loss, liability, claim, damage and expense whatsoever (A) losseswhich shall include, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out for all purposes of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (includingSection 8, but not be limited to, attorneys' fees and any and all reasonable legal expenses) expense whatsoever incurred in connection with investigating, preparing to defend or defending against any lawsuit, claim or other proceedinglitigation, commenced or threatened, whether or not resulting any claim whatsoever and any and all amounts paid in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt settlement of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability claim or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(blitigation) The Dealer-Manager shall indemnify as and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises when incurred arising out of, or is based upon: , or in connection with:
(i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Registration Statement, or in the Prospectus, or any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; applications or other documents or communications (collectively, the "Other Documents") executed by or on behalf of the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify any of the Units under the blue sky or state securities laws thereof or filed with the Commission;
(ii) the any omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue unless such statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany with respect to the Placement Agent by the Placement Agent expressly for inclusion in the Registration Statement or the Prospectus, or any amendment or supplement thereto, or in any Other Documents, as the case may be; or
(iii) any breach of any representation, warranty, covenant or agreement of the Company contained in this Agreement. The foregoing agreement to indemnify shall be in addition to any liability the Company may otherwise have, including liabilities arising under this Agreement.
(b) The Placement Agent agrees to indemnify and hold harmless the Company, its managers, officers, directors, employees, agents and counsel, and shall reimburse each other person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, to the same extent as the foregoing indemnity from the Company to the Placement Agent as set forth in Section 8(a) of this Agreement, but only with respect to statements or omissions, if any, made in the Registration Statement or the Prospectus, or any amendment or supplement thereto, or in any Other Documents in reliance upon and any such director, officer or controlling Person for any legal or other expenses reasonably incurred in conformity with written information furnished to the Company with respect to the Placement Agent by the Company Placement Agent expressly for inclusion in the Registration Statement or the Prospectus, or any such directoramendment or supplement thereto, officer or controlling Person in connection with investigating or defending or preparing to defend against any such lossOther Documents, claim, damage, liability or action as such expenses are incurredthe case may be.
(c) If any lawsuit, claim or proceeding action is brought against any indemnified party person or entity in respect of which indemnification indemnity may be sought against the indemnifying party pursuant to Sections 8(a) or 8(b) of this Section 11Agreement, such indemnified party person or entity (the "Indemnified Party") shall promptly notify the indemnifying party against whom indemnity may be sought (the "Indemnifying Party") in writing of the commencement institution of such lawsuit, claim or proceeding; provided, however, that action and the failure so to notify the indemnifying party Indemnifying Party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to promptly assume the defense of such lawsuitaction, claim or proceeding with including the employment of counsel of its choice at its expense; provided, however, that such counsel shall be (reasonably satisfactory to the indemnified party in the exercise such Indemnified Party) and payment of its reasonable judgmentexpenses. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party Such Indemnified Party shall have the right to employ separate its own counsel in any such case, but the fees and to participate expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by the Indemnifying Party in connection with the defense of such lawsuit, claim action or proceeding, and the indemnifying party Indemnifying Party shall bear not have promptly employed counsel satisfactory to such Indemnified Party to have charge of the reasonable fees, costs and expenses defense of such separate counsel (and shall pay action or such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party Indemnified Party shall have reasonably concluded that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (Indemnifying Party, in any of which case events such fees and expenses shall be borne by the indemnifying party Indemnifying Party and the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) Indemnified Party. Anything in this paragraph to the indemnifying party shall not have employed counsel satisfactory to such indemnified partycontrary notwithstanding, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party Indemnifying Party shall not be liable for any settlement of any lawsuit, such claim or proceeding action effected without its written consent. The Indemnifying Party shall not, without the prior written consent of each Indemnified Party that is not released as described in this sentence, settle or compromise any action, or permit a default or consent to the entry of judgment in or otherwise seek to terminate any pending or threatened action, in respect of which indemnity may be sought hereunder (which consent will whether or not be unreasonably withheldany Indemnified Party is a party thereto), but if settled with unless such settlement, compromise, consent, the indemnifying party agrees, subject to the provisions or termination includes an unconditional release of this Section 11, to indemnify the indemnified party each Indemnified Party from and against any loss, damage or all liability by reason in respect of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximaction.
(d) The amount paid Company and the Placement Agent agree to provide for just and equitable contribution if (i) an Indemnified Party makes a claim for indemnification pursuant to Sections 8(a) or payable by an indemnified party as a result 8(b) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, this Agreement (subject to the limitations set forth abovethereof) but it is found in a final judicial determination, not subject to further appeal, that such indemnification may not be enforced in such case, even though this Agreement expressly provides for indemnification in such case, or (ii) any legal Indemnified Party or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and Indemnifying Party seeks contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactivelythe Act, the rights to indemnificationExchange Act, reimbursement or otherwise, then the Company and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, Placement Agent shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by whatsoever to which either of them may be subject, so that the Placement Agent is responsible for the proportion thereof equal to the percentage which the commission to be paid per Unit set forth on the cover page of the Prospectus represents of the initial public offering price per Unit set forth on the cover page of the Prospectus and the Company is responsible for the remaining portion; provided, however, if applicable law does not permit such allocation, then other relevant equitable considerations such as the relative fault of the Company and the Placement Agent, in connection with the facts which resulted in such losses, liabilities, claims, damages and expenses shall also be considered. The relative fault, in the case of an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigatinguntrue statement, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or statement, omission or alleged omission, shall be determined by, among other things, whether such statement, alleged statement, omission or alleged omission relates to information supplied by the Company or by the Placement Agent, and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement, alleged statement, omission, or alleged omission. Notwithstanding The Company and the provisions Placement Agent agree that it would be unjust and inequitable if the respective obligations of the Company and the Placement Agent for contribution were determined by pro rata or per capita allocation of the aggregate losses, liabilities, claims, damages, and expenses or by any other method of allocation that does not reflect the equitable considerations referred to in this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person 8(d). No person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraudulent misrepresentation. For purposes of this Section 118(d), each Person controlling a Dealer-Manager person, if any, who controls the Placement Agent within the meaning of Section 15 of the Securities Act or Section 20 20(a) of the Exchange Act and each manager, officer, director, partner, employee, agent and counsel of the Placement Agent shall have the same rights to contribution as such Dealer-Managerthe Placement Agent, and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 20(a) of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director manager, officer, director, partner, employee, agent and counsel of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (ithe provisions of this Section 8(d). Anything in this Section 8(d) and (iito the contrary notwithstanding, no party shall be liable for contribution with respect to the settlement of any claim or action effected without its written consent. This Section 8(d) of the immediately preceding sentence. Any party entitled is intended to supersede any right to contribution willunder the Act, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) Exchange Act or otherwise.
Appears in 3 contracts
Sources: Placement Agreement (Usa Capital First Trust Deed Fund LLC), Placement Agreement (Usa Capital First Trust Deed Fund LLC), Placement Agreement (Usa Capital First Trust Deed Fund LLC)
Indemnification and Contribution. (a) The Company agrees to shall indemnify and hold harmless each Underwriter, and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls each Underwriter within the meaning of Section 20(a) of the Act and the Exchange Act) Maxim or any of such affiliates from and , against any and all (A) lossesloss, claimsliability, damages claim, damage and liabilities expense whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) expenses incurred in connection with investigating, preparing to defend or defending against any lawsuit, claim or other proceedinglitigation, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action claim whatsoever or in respect thereof, to which the Company connection with any investigation or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out inquiry of, or is action or proceeding that may be brought against, the respective indemnified parties, arising out of or based upon: (i) upon any breach of the representations and warranties of the Company made in this Agreement or any untrue statement statements or alleged untrue statement statements of a material fact contained (A) in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any Offer Documentsjurisdiction in order to qualify all or any part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in from any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by of the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any foregoing of a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they are made, not misleading; provided, but in each case solely and exclusively to the extent however, that the untrue statement or alleged untrue foregoing indemnity shall not apply in respect of any statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by such Underwriter expressly for use in any Preliminary Prospectus, the Registration Statement or Prospectus, or any amendment or supplement thereto, or in any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of such Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of such Underwriter to the person asserting any losses, claims, damages or liabilities, and shall reimburse if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of the Company under this Section 10(a) will be in addition to any liability the Company may otherwise have. The indemnification obligations of the Company and the Selling Shareholders shall be several and not joint.
(b) Each Selling Shareholder shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act against any such directorand all loss, officer liability, claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or controlling Person for defending against any legal litigation, commenced or other expenses reasonably incurred by the Company threatened, or any such director, officer claim whatsoever or controlling Person in connection with investigating any investigation or defending inquiry of, or preparing action or proceeding that may be brought against, the respective indemnified parties, arising out of or based upon any breach of the representations and warranties of such Selling Shareholder made in this Agreement or any untrue statements or alleged untrue statements of material fact contained in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any jurisdiction in order to defend against qualify all or any such part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or the omission or alleged omission from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, but only with respect to any and all loss, liability, claim, damagedamage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to each Underwriter by such Selling Shareholder expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of the Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of the Underwriter to the person asserting any losses, claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of each Selling Shareholder under this Section 10(b) will be in addition to any liability or action as such expenses are incurredSelling Shareholder may otherwise have. The indemnification obligations of the Company and each Selling Shareholder shall be several and not joint.
(c) Each Underwriter severally and not jointly shall indemnify and hold harmless the Company, each Selling Shareholder, each of the directors of the Company, each of the officers of the Company who shall have signed the Registration Statement, and each other person, if any, who controls the Company or such Selling Shareholder within the meaning of the Act and the Exchange Act, to the same extent as the foregoing indemnities from the Company and each Selling Shareholder to the Underwriters, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to the Company and Selling Shareholders by any Underwriter through the Representative expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be. The obligations of each Underwriter under this Section 10(c) will be in addition to any liability which such Underwriter may otherwise have.
(d) If any lawsuitaction, claim inquiry, investigation or proceeding is brought against any indemnified party person in respect of which indemnification may be sought pursuant to Section 10(a), (b) or (c) hereof, such person (hereinafter called the “indemnified party”) shall, promptly after notification of, or receipt of service of process for, such action, inquiry, investigation or proceeding, notify in writing the party or parties against whom indemnification is to be sought (hereinafter called the “indemnifying party”) of the institution of such action, inquiry, investigation or proceeding. The indemnifying party, upon the request of the indemnified party, shall assume the defense of such action, inquiry, investigation or proceeding, including, without limitation, the employment of counsel (reasonably satisfactory to such indemnified party) and payment of expenses. No indemnification provided for in this Section 10 shall be available to any indemnified party who shall fail to give such notice if the indemnifying party pursuant does not have knowledge of such action, inquiry, investigation or proceeding to this Section 11, the extent that such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that has been materially prejudiced by the failure to give such notice, but the omission to so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 1110. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such Such indemnified party shall have the right to employ separate its or their own counsel in any such case, but the fees and to participate expenses of such counsel shall be at the expense of such indemnified party unless the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such lawsuit, claim action or proceeding, and if the indemnifying party shall bear not have, within a reasonable period of time in light of the reasonable feescircumstances, costs and expenses employed counsel reasonably satisfactory to the indemnified party, to have charge of the defense of such separate action, inquiry, investigation or proceeding or if such indemnified party or parties shall have been advised by counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt that there may be a conflict between the positions of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such or parties and of the indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim parties or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it such indemnified party or to other indemnified parties which are different from or in addition to those available to the indemnifying party (or parties, in any of which case events the indemnifying indemnified party or parties shall not have the right be entitled to direct select counsel to conduct the defense of to the extent determined by such action on behalf counsel to be necessary to protect the interests of the indemnified party); (iii) party or parties, and the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise reasonable fees and expenses of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party counsel shall authorize such indemnified party to employ separate counsel at the expense of be borne by the indemnifying party. The foregoing indemnification commitments indemnifying party shall apply whether or not be responsible for the fees and disbursements of only one such counsel so engaged by the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred group. Expenses covered by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.this
Appears in 3 contracts
Sources: Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless the Sales Manager and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls the Sales Manager within the meaning of Section 20(a) 15 of the Act or Section 20 of the Exchange Act, as follows:
(i) Maxim or any of such affiliates from and against any and all (A) lossesloss, claimsliability, damages claim, damage and liabilities expense whatsoever, under the Securities Act or otherwise (as incurred or suffered)incurred, arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement (or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering), or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading;
(other than statements ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or omissions any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including, subject to Section 5.1(c) below, the reasonable fees and disbursements of legal counsel chosen by the Sales Manager), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services written information furnished to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of Sales Manager expressly for use in the Registration Statement (or any invoices therefore from Maxim. However, amendment thereto) or any preliminary prospectus or the Company will not be obligated to indemnify an indemnified party for Prospectus (or any loss, claim, damage, liability amendment or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified partysupplement thereto).
(b) The Dealer-Sales Manager shall agrees to indemnify and hold harmless the Company, its officers, directors Company and employees, each of its directors and each Personofficer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, from and Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 5.1(a) above, as incurred, but only with respect to untrue statements or liabilityomissions, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained statements or omissions, made in the Registration Statement (Aor any amendments thereto) in or any Offer Documents, preliminary prospectus or in the Prospectus (or any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (Bsupplement thereto) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information furnished to the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company Sales Manager expressly for use in the Registration Statement (or any amendment thereto) or such director, officer preliminary prospectus or controlling Person in connection with investigating the Prospectus (or defending any amendment or preparing to defend against any such loss, claim, damage, supplement thereto). The total liability or action as such expenses are incurredof the Sales Manager under this Section 5.1(b) shall not exceed the total actual sales price of Stock sold by the Sales Manager that is the subject of the dispute.
(c) If Any indemnified party that proposes to assert the right to be indemnified under this Article V will, promptly after receipt of notice of commencement of any lawsuit, claim or proceeding is brought action against any indemnified such party in respect of which indemnification may a claim is to be sought made against the an indemnifying party pursuant to or parties under this Section 11Article V, notify each such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuitaction, claim or proceeding; providedenclosing a copy of all papers served, however, that but the failure omission so to notify the such indemnifying party shall will not relieve the indemnifying party from any obligation or liability which that it may might have under this Section 11 except to any indemnified party to the extent that it has been is not materially prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11as a result thereof. In case If any such lawsuit, claim or proceeding shall be action is brought against any indemnified party and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingits commencement, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, and, to the extent that it elects by delivering written notice to the indemnified party promptly after written receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with legal counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuitdefense, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall the indemnifying party will not be satisfactory liable to the indemnified party in the exercise of its reasonable judgmentfor any legal or other expenses except as provided below. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such The indemnified party shall will have the right to employ separate its own legal counsel in any such action, but the fees, expenses and to participate in the defense other charges of such lawsuit, claim or proceeding, and legal counsel will be at the indemnifying party shall bear the reasonable fees, costs and expenses expense of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; unless (ii1) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an employment of legal counsel by the indemnified party and has been authorized in writing by the indemnifying party, and such (2) the indemnified party shall have has reasonably concluded (based on the written advice of legal counsel) that there may be legal defenses available to it or to other indemnified parties which that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict exists (based on the written advice of legal counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party shall will not have the right to direct the defense of such action on behalf of the indemnified party); ) or (iii4) the indemnifying party shall has not have in fact employed legal counsel satisfactory to such indemnified party, in assume the exercise defense of such indemnified party’s reasonable judgment, to represent such indemnified party action within a reasonable time after receiving notice of the institution commencement of any such lawsuitthe action, claim or proceeding; or (iv) in each of which cases the indemnifying party shall authorize such indemnified party to employ separate reasonable fees, disbursements and other charges of legal counsel will be at the expense of the indemnifying partyparty or parties. The foregoing indemnification commitments It is understood that the indemnifying party or parties shall apply whether not, in connection with any proceeding or not related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all such indemnified party is a formal party to any or parties. All such lawsuitfees, claim or proceeding. The disbursements and other charges will be reimbursed by the indemnifying party shall promptly as they are incurred. An indemnifying party will not be liable for any settlement of any lawsuit, action or claim or proceeding effected without its written consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs of this Section 11 Article V is applicable in accordance with its terms but for any reason is held to be unavailable from any indemnifying party the Company or is insufficient to hold harmless a party indemnified thereunderthe Sales Manager, the Company, on Company and the one hand, and Maxim, on the other hand, shall Sales Manager will contribute to the aggregate total losses, claims, damagesliabilities, liabilities expenses and expenses of the nature contemplated by such indemnification provision damages (including any investigationinvestigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims claim asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, persons other than Maximthe Sales Manager, who may also be liable for contribution, including Persons such as persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution) as incurred to which the Company and Maxim the Sales Manager may be subject, subject in such proportions proportion as is shall be appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Sales Manager on the other. The relative benefits received by the Company on the one hand and the Sales Manager on the other hand, hand shall be deemed to be in the same proportion as the total net proceeds from the Rights Offering oroffering (before deducting expenses) received by the Company bear to the total compensation (before deducting expenses) received by the Sales Manager from the sale of Stock on behalf of the Company. If, if such but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to above in the foregoing sentence but also the relative fault of the Company, on the one hand, and Maximthe Sales Manager, on the other handother, in connection with respect to the statements or omissions omission which resulted in such lossesloss, claimsclaim, damagesliability, liabilities expense or expensesdamage, or action in respect thereof, as well as any other relevant equitable considerationsconsiderations with respect to such offering. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The Such relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively the Sales Manager, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Sales Manager agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f5.1(d) were to be determined by pro rata allocation or by any other method of allocation allocation, which does not take account of into account, the equitable considerations referred to above in this Sectionherein. The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the loss, claim, liability, expense or damage, or action in respect thereof, referred to above in this Section 11 5.1(d) shall be deemed to include include, for the purpose of this Section 5.1(d), any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationsuch action or claim. Notwithstanding the foregoing provisions of this Section 5.1(d), or the Sales Manager shall not be required to contribute any investigation or proceeding amount in excess of the amount by which the total actual sales price at which Stock sold by the Sales Manager exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages that the Sales Manager has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering omission and (ii) no Person person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 115.1(d), each Person controlling any person who controls a Dealer-Manager party to this Agreement within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall will have the same rights to contribution as such Dealer-Managerthat party, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer and director of the Company who shall have signed the Registration Statement and each director of the Company shall will have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentenceprovisions hereof. Any party entitled to contribution willcontribution, promptly after receipt of notice of commencement of any action, suit or proceeding action against such party in respect of which a claim for contribution may be made against another party or partiesunder this Section 5.1(d), will notify each any such party or parties from whom contribution may be sought, but the omission so to so notify such party or parties shall will not relieve the that party or parties from whom contribution may be sought from any other obligation it or they may have under this Section 11(f5.1(d). No party will be liable for contribution with respect to any action or claim settled without its written consent (which consent will not be unreasonably withheld).
(e) or otherwiseThe indemnity and contribution provided by this Article V shall not relieve the Company and the Sales Manager from any liability the Company and the Sales Manager may otherwise have (including, without limitation, any liability the Sales Manager may have for a breach of its obligations under Article II above).
Appears in 3 contracts
Sources: Sales Agreement (Innkeepers Usa Trust/Fl), Sales Agreement (Windrose Medical Properties Trust), Sales Agreement (Capital Lease Funding Inc)
Indemnification and Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its affiliates, directors and indemnify Maxim officers and its affiliates employees, and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Securities Act or Section 20 of the Exchange Act) Maxim or any of such affiliates , from and against any and all (A) losses, claims, damages and or liabilities whatsoeverto which the Underwriter or such person may become subject, under the Securities Act or otherwise (as incurred or sufferedincluding in settlement of any litigation if such settlement is effected with the written consent of the Company), arising insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness and, if applicable, at any amendment or supplement thereto, in any other solicitation material used by subsequent time pursuant to Rules 430A and 430B of the Company or authorized by it for use in connection with the Rights OfferingRules and Regulations, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission from the Registration Statement, or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) an untrue statement or alleged untrue statement of a material fact contained in the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Registration Statement or the Prospectus), any Issuer Free Writing Prospectus or the Marketing Materials or in any other materials used in connection with the offering of the Shares, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but and will reimburse the Underwriters for any legal or other expenses reasonably incurred by them in each connection with evaluating, investigating or defending against such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto or any Issuer Free Writing Prospectus, in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information furnished to the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such directorRepresentatives specifically for use in the preparation thereof, officer or controlling Person which written information is described in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredSection 7(f).
(cb) If any lawsuitEach Underwriter will, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11severally and not jointly, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuitindemnify, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure defend and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against hold harmless the Company, any of its affiliates, directors, officers or directors or any Person and employees, and each person, if any, who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement from and directors of the Company) as incurred against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto or any Issuer Free Writing Prospectus in reliance upon and Maxim in conformity with written information furnished to the Company by the Representatives specifically for use in the preparation thereof, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with defending against any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to any indemnified party except to the extent such indemnifying party has been materially prejudiced by such failure. In case any such action shall be brought against any indemnified party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in, and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of the indemnifying party’s election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof; provided, however, that if (i) the indemnified party has reasonably concluded (based on advice of counsel) that there may be subjectlegal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (ii) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party), or (iii) the indemnifying party has not in fact employed counsel reasonably satisfactory to the indemnified party to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, the indemnified party shall have the right to employ a single counsel to represent it in any claim in respect of which indemnity may be sought under subsection (a) or (b) of this Section 7, in which event the reasonable fees and expenses of such proportions separate counsel shall be borne by the indemnifying party or parties and reimbursed to the indemnified party as incurred. The indemnifying party under this Section 7 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is a party or could be named and indemnity was or would be sought hereunder by such indemnified party, unless such settlement, compromise or consent (a) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such action, suit or proceeding and (b) 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.
(d) If the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering and sale of the Shares or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of total underwriting discounts and commissions received by the Dealer-Manager Underwriters, in each case as set forth in Section 6 hereof actually received by the Dealer-Managertable on the cover page of the Final Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative relevant intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection (d) were to be determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in the first sentence of this Sectionsubsection (d). The aggregate amount paid by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, action or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionthat is the subject of this subsection (d). Notwithstanding the provisions of this Section 11: subsection (i) d), the Dealer-Manager Underwriters shall not be required to contribute any amount in excess of the fees amount of the Underwriters’ commissions referenced in Section 4(a) actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person such Underwriter pursuant to this Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their respective names on Schedule I. For purposes of this Section 117, each Person controlling a Dealer-Manager officer and employee of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company with the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
(e) The obligations of the Company under this Section 7 shall be in addition to any liability that the Company may otherwise have and the benefits of such obligations shall extend, upon the same terms and conditions, to each person, if any, who controls the Underwriters within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act; and the obligations of the Underwriters under this Section 7 shall be in addition to any liability that the Underwriters may otherwise have and the benefits of such obligations shall extend, upon the same rights terms and conditions, to contribution as such Dealer-Managerthe Company, and its officers, directors and each Person, if any, person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
(f) For purposes of this Agreement, each officer the Representatives confirm, and the Company acknowledges, that there is no information concerning the Underwriters furnished in writing to the Company by the Representatives specifically for preparation of or inclusion in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, other than the statements set forth in the last paragraph on the cover page of the Prospectus and the statements set forth in the “Underwriting” section of the Prospectus and Time of Sale Disclosure Package, only insofar as such statements relate to the amount of selling concession and re-allowance or to over-allotment and related activities that may be undertaken by the Underwriters.
(g) If, on any Closing Date, any one or more of the several Underwriters shall fail or refuse to purchase Shares that it or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate number of the Shares to be purchased on such date, the Representatives may make arrangements satisfactory to the Company who for the purchase of such Shares by other persons, including any of the Underwriters, but if no such arrangements are made by such Closing Date, the other Underwriters shall have signed be obligated, severally and not jointly, in the Registration Statement proportions that the number of Underwritten Shares set forth opposite their respective names on Schedule I bears to the aggregate number of Underwritten Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on any Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Shares and each director the aggregate number of Shares with respect to which such default occurs exceeds 10% of the aggregate number of Shares to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Shares are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions of Section 5(a)(vii) and Section 7 shall at all times be effective and shall survive such termination. In any such case either the Representatives or the Company shall have the same rights right to contribution as postpone the CompanyClosing Date, subject but in each case no event for longer than seven days in order that the required changes, if any, to clauses (i) the Registration Statement and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of Prospectus or any action, suit other documents or proceeding against such party in respect of which a claim for contribution arrangements may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseeffected.
Appears in 3 contracts
Sources: Underwriting Agreement (UniTek Global Services, Inc.), Underwriting Agreement (UniTek Global Services, Inc.), Underwriting Agreement (UniTek Global Services, Inc.)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) (i) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by registration statement for the Company or authorized by it for use in connection with registration of the Rights Offering, Securities as originally filed or in any blue sky application amendment thereof, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the an omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but or (ii) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact, in light of the circumstances in which it was made, or an omission or alleged omission to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in any Preliminary Prospectus, the Final Prospectus, or in any amendment or supplement thereto, or in any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d), and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by or on behalf of any Underwriter through the Representatives specifically for inclusion therein.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers, and shall reimburse each person who controls the Company and any such directorwithin the meaning of either the Act or the Exchange Act, officer or controlling Person for any legal or other expenses reasonably incurred by to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in Section 8(a) above. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that (i) the statement set forth on the cover page regarding delivery of the Securities and (ii) under the heading “Underwriting,” (A) the sentences related to concessions and reallowances and (B) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredIssuer Free Writing Prospectus.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in such lawsuit, claim or proceeding, and, after written notice from any action for which indemnification is sought (in which case the indemnifying party to such shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party, to assume the defense of such lawsuit, claim party or proceeding with counsel of its choice at its expenseparties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party’s election of to appoint counsel to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the actual or potential defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); , (iii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; action or (iv) the indemnifying party shall authorize such the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement action) unless such settlement, compromise or consent includes an unconditional release of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the each indemnified party from and against any loss, damage or all liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuitsuch claim, claim action, suit or proceeding against it arising out and does not include a statement as to, or admission of, fault, culpability or failure to act on behalf of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid In the event that the indemnity provided in paragraph (a) or payable by an indemnified party as a result (b) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 8 is for any reason held to be unavailable from any indemnifying unenforceable by an indemnified party or is insufficient to hold harmless a party indemnified thereunderunder paragraph (a) or (b) of this Section 8, although applicable in accordance with its terms (including the requirements of Section 8(c) above), the Company, on Company and the one hand, and Maxim, on the other hand, shall Underwriters severally agree to contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and or other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit with investigating or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companydefending same) as incurred (collectively “Losses”) to which the Company and Maxim one or more of the Underwriters may be subject, subject in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, by the Underwriters on the other hand, from the Rights Offering oroffering of the Securities; provided, if however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder; provided, further, that each Underwriter’s obligation to contribute to Losses hereunder shall be several and not joint. If the allocation provided by the immediately preceding sentence is not permitted by applicable lawunavailable for any reason, the Company and the Underwriters severally shall contribute in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, of the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company, on the one hand, and Maxim, on the other hand, Company shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually it, and benefits received by the Dealer-Manager. The relative fault of Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Company, on the one hand, and Maxim, on the other hand, Final Prospectus. Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied provided by the Company on the one hand or Maxim (which consists solely and exclusively the Underwriters on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionabove. Notwithstanding the provisions of this Section 11: paragraph (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 118, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses the applicable terms and conditions of this paragraph (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwised).
Appears in 3 contracts
Sources: Underwriting Agreement (Baltimore Gas & Electric Co), Underwriting Agreement (Baltimore Gas & Electric Co), Underwriting Agreement (Baltimore Gas & Electric Co)
Indemnification and Contribution. (a) A. The Company Depositor agrees to indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Securities Act or Section 12 of the Exchange Act) Maxim or any of such affiliates Act from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereofthereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Offered Certificates), to which the Company such Underwriter or any such director, officer or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Registration Statement, or in any such amendment thereof or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any Registration Statement a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission was made to state in reliance upon and the Prospectus a material fact required to be stated therein or necessary to make the statements therein, in conformity with the Dealer-Manager Informationlight of the circumstances under which they were made, not misleading and shall reimburse the Company such Underwriter and any each such director, officer or controlling Person person promptly upon demand for any legal or other expenses reasonably incurred by the Company such Underwriter or any such director, officer or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party Depositor shall not relieve be liable in any such case to the indemnifying party from extent that any obligation such loss, claim, damage, liability or liability which it may have under this Section 11 action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus, or any amendment thereof or supplement thereto, or the Registration Statement, or any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein (except to the extent that it has been prejudiced any untrue statement or alleged untrue statement or omission or alleged omission is a result of Seller Provided Information which is not accurate and complete in any all material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified partyrespects); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party indemnity agreement is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights liability which the Depositor may otherwise have to any indemnified parties may have under common law Underwriter or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letterany controlling person of any of such Underwriter.
(f) In order B. Each Underwriter severally agrees to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to indemnify and hold harmless a party indemnified thereunderthe Depositor, each of its directors, each of its officers who signed the Company, on the one handRegistration Statement, and Maximeach person, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maximif any, who may also be liable for contribution, including Persons who control controls the Company Depositor within the meaning of Section 15 of the Securities Act or Section 20 12 of the Exchange ActAct against any and all loss, officers of the Company who signed the Registration Statement and directors of the Company) as incurred claim, damage or liability, or any action in respect thereof, to which the Company and Maxim Depositor or any such director, officer or controlling person may be become subject, in under the Securities Act or otherwise, insofar as such proportions as loss, claim, damage, liability or action arises out of, or is appropriate to reflect the relative benefits received by the Companybased upon, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as (i) any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (ii) the omission or alleged omission to state therein a material fact relates required to information supplied by be stated therein or necessary to make the Company or Maxim (which consists solely statements in the Prospectus, when considered in conjunction with the Prospectus, and exclusively in the light of the Dealer-Manager Information) and circumstances under which they were made, not misleading, but in each case only to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such extent that the untrue statement or omission. The Company alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager agree that it would not be just Depositor by or on behalf of such Underwriter specifically for inclusion therein, and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation shall reimburse the Depositor and any such director, officer or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include controlling person for any legal or other expenses reasonably incurred by such indemnified party the Depositor or any director, officer or controlling person in investigating, preparing connection with investigating or defending or preparing to defend against any litigationsuch loss, claim, damage, liability or any investigation or proceeding by any judicialaction as such expenses are incurred, regulatory or other legal or governmental agency or bodyprovided, commenced or threatenedhowever, or any claim whatsoever based upon any that no Underwriter shall be liable to the extent that such untrue statements or alleged untrue statement or omission or alleged omissionomission is a result of Seller Provided Information that is not accurate and complete in all material respects. Notwithstanding The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the provisions of Depositor or any such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section 11VIII of notice of any claim or the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against any indemnifying party under this Section VIII, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify an indemnifying party shall not relieve it from any liability which it may have under this Section VIII except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify any indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under this Section VIII. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party 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 thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, except to the extent provided in the next following paragraph, the indemnifying party shall not be liable to the indemnified party under this Section VIII for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless: (i) the Dealer-Manager employment thereof has been specifically authorized by the indemnifying party in writing; (ii) such indemnified party shall have been advised by such counsel that there may be required one or more legal defenses available to contribute any amount it which are different from or additional to those available to the indemnifying party and in excess the reasonable judgment of such counsel it is advisable for such indemnified party to employ separate counsel; or (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the fees actually received by indemnifying party, the Dealer-Manager from indemnifying party shall not have the Company right to assume the defense of such action on behalf of such indemnified party, it being understood, however, the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the Rights Offering same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to one local counsel per jurisdiction) at any time for all such indemnified parties, which firm shall be designated in writing by the related Underwriter, if the indemnified parties under this Section VIII consist of one or more Underwriters or any of its or their controlling persons, or the Depositor, if the indemnified parties under this Section VIII consist of the Depositor or any of the Depositor's directors, officers or controlling persons. Each indemnified party, as a condition of the indemnity agreements contained in Section VIII(A) and (B), shall use its best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing paragraph, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) no Person guilty such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of fraudulent misrepresentation (within such settlement. No indemnifying party shall, without the meaning of Section 11(f) prior written consent of the Securities Act) shall be entitled to contribution from indemnified party, effect any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement settlement of any action, suit pending or threatened proceeding against such party in respect of which any indemnified party is or could have been a claim for contribution may be made against another party or partiesand indemnity could have been sought hereunder by such indemnified party, notify each unless such settlement includes an unconditional release of such indemnified party or parties from whom contribution may be sought, but all liability on claims that are the omission to so notify subject matter of such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseproceeding.
Appears in 3 contracts
Sources: Underwriting Agreement (Amresco Residential Securities Corp Mortgage Loan Tr 1997-2), Underwriting Agreement (Amresco Residential Securities Corp Mortgage Loan Tr 1998-2), Underwriting Agreement (Amresco Residential Securities Corp Mort Loan Trust 1998-1)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) (i) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by registration statement for the Company or authorized by it for use in connection with registration of the Rights Offering, Securities as originally filed or in any blue sky application amendment thereof, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the an omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but or (ii) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact, in light of the circumstances in which it was made, or an omission or alleged omission to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in any Preliminary Prospectus, the Final Prospectus, or in any amendment or supplement thereto, or in any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by or on behalf of any Underwriter through the Representatives specifically for inclusion therein.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers, and shall reimburse each person who controls the Company and any such directorwithin the meaning of either the Act or the Exchange Act, officer or controlling Person for any legal or other expenses reasonably incurred by to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in Section 8(a) above. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that (i) the statement set forth on the cover page regarding delivery of the Securities and (ii) under the heading “Underwriting,” (A) the sentences related to concessions and reallowances and (B) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredIssuer Free Writing Prospectus.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in such lawsuit, claim or proceeding, and, after written notice from any action for which indemnification is sought (in which case the indemnifying party to such shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party, to assume the defense of such lawsuit, claim party or proceeding with counsel of its choice at its expenseparties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party’s election of to appoint counsel to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the actual or potential defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); , (iii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; action or (iv) the indemnifying party shall authorize such the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement action) unless such settlement, compromise or consent includes an unconditional release of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the each indemnified party from and against any loss, damage or all liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuitsuch claim, claim action, suit or proceeding against it arising out and does not include a statement as to, or admission of, fault, culpability or failure to act on behalf of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid In the event that the indemnity provided in paragraph (a), (b) or payable by an indemnified party as a result (c) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 8 is for any reason held to be unavailable from any indemnifying unenforceable by an indemnified party or is insufficient to hold harmless a party indemnified thereunderunder paragraph (a) or (b) of this Section 8, although applicable in accordance with its terms (including the requirements of Section 8(c) above), the Company, on Company and the one hand, and Maxim, on the other hand, shall Underwriters severally agree to contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and or other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit with investigating or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companydefending same) as incurred (collectively “Losses”) to which the Company and Maxim one or more of the Underwriters may be subject, subject in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, by the Underwriters on the other hand, from the Rights Offering oroffering of the Securities; provided, if however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder; provided, further, that each Underwriter’s obligation to contribute to Losses hereunder shall be several and not joint. If the allocation provided by the immediately preceding sentence is not permitted by applicable lawunavailable for any reason, the Company and the Underwriters severally shall contribute in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, of the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company, on the one hand, and Maxim, on the other hand, Company shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually it, and benefits received by the Dealer-Manager. The relative fault of Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Company, on the one hand, and Maxim, on the other hand, Final Prospectus. Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied provided by the Company on the one hand or Maxim (which consists solely and exclusively the Underwriters on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionabove. Notwithstanding the provisions of this Section 11: paragraph (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 118, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses the applicable terms and conditions of this paragraph (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwised).
Appears in 3 contracts
Sources: Underwriting Agreement (Exelon Generation Co LLC), Underwriting Agreement (Exelon Generation Co LLC), Underwriting Agreement (Exelon Corp)
Indemnification and Contribution. (a) The Company agrees to shall indemnify and hold harmless each Underwriter, and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls each Underwriter within the meaning of Section 20(a) of the Act and the Exchange Act) Maxim or any of such affiliates from and , against any and all (A) lossesloss, claimsliability, damages claim, damage and liabilities expense whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) expenses incurred in connection with investigating, preparing to defend or defending against any lawsuit, claim or other proceedinglitigation, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action claim whatsoever or in respect thereof, to which the Company connection with any investigation or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out inquiry of, or is action or proceeding that may be brought against, the respective indemnified parties, arising out of or based upon: (i) upon any breach of the representations and warranties of the Company made in this Agreement or any untrue statement statements or alleged untrue statement statements of a material fact contained (A) in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any Offer Documentsjurisdiction in order to qualify all or any part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in from any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by of the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any foregoing of a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they are made, not misleading; provided, but in each case solely and exclusively to the extent however, that the untrue statement or alleged untrue foregoing indemnity shall not apply in respect of any statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by such Underwriter expressly for use in any Preliminary Prospectus, the Registration Statement or Prospectus, or any amendment or supplement thereto, or in any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of such Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of such Underwriter to the person asserting any losses, claims, damages or liabilities, and shall reimburse if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of the Company under this Section 10(a) will be in addition to any liability the Company may otherwise have. The indemnification obligations of the Company and the Selling Shareholder shall be several and not joint.
(b) The Selling Shareholder shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act against any such directorand all loss, officer liability, claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or controlling Person for defending against any legal litigation, commenced or other expenses reasonably incurred by the Company threatened, or any such director, officer claim whatsoever or controlling Person in connection with investigating any investigation or defending inquiry of, or preparing action or proceeding that may be brought against, the respective indemnified parties, arising out of or based upon any breach of the representations and warranties of the Selling Shareholder made in this Agreement or any untrue statements or alleged untrue statements of material fact contained in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any jurisdiction in order to defend against qualify all or any such part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or the omission or alleged omission from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, but only with respect to any and all loss, liability, claim, damagedamage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to each Underwriter by such Selling Shareholder expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of the Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of the Underwriter to the person asserting any losses, claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of each Selling Shareholder under this Section 10(b) will be in addition to any liability or action as such expenses are incurredSelling Shareholder may otherwise have. The indemnification obligations of the Company and the Selling Shareholder shall be several and not joint.
(c) Each Underwriter severally and not jointly shall indemnify and hold harmless the Company, the Selling Shareholder, each of the directors of the Company, each of the officers of the Company who shall have signed the Registration Statement, and each other person, if any, who controls the Company or the Selling Shareholder within the meaning of the Act and the Exchange Act, to the same extent as the foregoing indemnities from the Company and the Selling Shareholder to the Underwriters, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to the Company and the Selling Shareholder by any Underwriter through the Representative expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be. The obligations of each Underwriter under this Section 10(c) will be in addition to any liability which such Underwriter may otherwise have.
(d) If any lawsuitaction, claim inquiry, investigation or proceeding is brought against any indemnified party person in respect of which indemnification may be sought pursuant to Section 10(a), (b) or (c) hereof, such person (hereinafter called the “indemnified party”) shall, promptly after notification of, or receipt of service of process for, such action, inquiry, investigation or proceeding, notify in writing the party or parties against whom indemnification is to be sought (hereinafter called the “indemnifying party”) of the institution of such action, inquiry, investigation or proceeding. The indemnifying party, upon the request of the indemnified party, shall assume the defense of such action, inquiry, investigation or proceeding, including, without limitation, the employment of counsel (reasonably satisfactory to such indemnified party) and payment of expenses. No indemnification provided for in this Section 10 shall be available to any indemnified party who shall fail to give such notice if the indemnifying party pursuant does not have knowledge of such action, inquiry, investigation or proceeding to this Section 11, the extent that such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that has been materially prejudiced by the failure to give such notice, but the omission to so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 1110. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such Such indemnified party shall have the right to employ separate its or their own counsel in any such case, but the fees and to participate expenses of such counsel shall be at the expense of such indemnified party unless the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such lawsuit, claim action or proceeding, and if the indemnifying party shall bear not have, within a reasonable period of time in light of the reasonable feescircumstances, costs and expenses employed counsel reasonably satisfactory to the indemnified party, to have charge of the defense of such separate action, inquiry, investigation or proceeding or if such indemnified party or parties shall have been advised by counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt that there may be a conflict between the positions of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such or parties and of the indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim parties or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it such indemnified party or to other indemnified parties which are different from or in addition to those available to the indemnifying party (or parties, in any of which case events the indemnifying indemnified party or parties shall not have the right be entitled to direct select counsel to conduct the defense of to the extent determined by such action on behalf counsel to be necessary to protect the interests of the indemnified party); (iii) party or parties, and the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise reasonable fees and expenses of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party counsel shall authorize such indemnified party to employ separate counsel at the expense of be borne by the indemnifying party. The foregoing indemnification commitments indemnifying party shall apply whether or not be responsible for the fees and disbursements of only one such counsel so engaged by the indemnified party or parties as a group. Expenses covered by the indemnification in this Section 10 shall be paid by the indemnifying party promptly after written request is submitted by the indemnified party. In the event that it is determined that the indemnified party was not entitled to receive payments for expenses pursuant to this Section 10, the indemnified party shall return all sums that have been paid pursuant hereto. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a formal party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action. Anything in this Section 10 to any such lawsuit, claim or proceeding. The the contrary notwithstanding an indemnifying party shall not be liable for any settlement of any lawsuit, a claim or proceeding effected affected without its consent (written consent, which consent will shall not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held to be 10 is unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderunder Section 10(a), (b) or (c) hereof in respect of any losses, liabilities, claims, damages or expenses (or actions, inquiries, investigations or proceedings in respect thereof) referred to therein, except by reason of the Companyfailure to give notice as required in Section 10(d) hereof (provided that the indemnifying party does not have knowledge of the action, on inquiry, investigation or proceeding and to the one handextent such party has been materially prejudiced by the failure to give such notice), and Maxim, on the other hand, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, liabilities, claims, damagesdamages or expenses (or actions, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigationinquiries, legal and other expenses incurred investigations or proceedings in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, on the one handSelling Shareholder, and Maxim, on the other hand, Underwriters from the Rights Offering oroffering of the Shares. If, if such however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, on the one handSelling Shareholder, and Maxim, on the other hand, Underwriters in connection with the statements or omissions which resulted in such losses, claimsliabilities, damagesclaims or expenses (or actions, liabilities inquiries, investigations or expensesproceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, on Company and the one hand, and Maxim, on the other hand, Selling Shareholder shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually them, respectively, and benefits received by the Dealer-ManagerUnderwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Shareholder, or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, the Selling Shareholder, and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant contributions to this Section 11(f10(e) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this SectionSection 10(e). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and or expenses incurred by an indemnified party and (or actions, inquiries, investigations or proceedings in respect thereof) referred to above in this Section 11 10(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue action or alleged untrue statement or omission or alleged omissionclaim. Notwithstanding the provisions of this Section 11: 10(e), (i) the Dealer-Manager no Underwriter shall not be required to contribute any amount in excess of the fees actually received underwriting discounts and commissions applicable to the Shares purchased by the Dealer-Manager from the Company in connection with the Rights Offering such Underwriter, and (ii) no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 3 contracts
Sources: Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless the Underwriters, their affiliates, directors and indemnify Maxim officers and its affiliates employees, and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls an Underwriter within the meaning of Section 20(a) 15 of the Securities Act or Section 20 of the Exchange Act) Maxim or any of such affiliates , from and against any and all (A) losses, claims, damages and or liabilities whatsoeverto which the Underwriters or such person may become subject, under the Securities Act or otherwise (as incurred or sufferedincluding in settlement of any litigation if such settlement is effected with the written consent of the Company), arising insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness and at any amendment or supplement thereto, in any other solicitation material used by subsequent time pursuant to Rule 430A of the Company or authorized by it for use in connection with the Rights OfferingRules and Regulations, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission from the Registration Statement, or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) an untrue statement or alleged untrue statement of a material fact contained in the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto , or the Marketing Materials, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but and will reimburse the Underwriters for any legal or other expenses reasonably incurred by them in each connection with evaluating, investigating or defending against such loss, claim, damage, liability or action (or any legal or other expense reasonably incurred in connection with the evaluation, investigation or defense thereof); provided, however, that the Company shall not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto in reliance upon and in conformity with the Dealer-Manager Underwriters’ Information, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(cb) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent Each Underwriter severally agrees that it has been prejudiced in any material respect by such failure will indemnify and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against hold harmless the Company, any of its affiliates, directors, officers or directors or any Person and employees, and each person, if any, who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement from and directors of the Company) as incurred against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto in reliance upon and Maxim in conformity with written information furnished to the Company by the Representative by or on behalf of any Underwriters specifically for use in the preparation thereof, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with evaluating, investigating or defending against any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to any indemnified party except to the extent such indemnifying party has been materially prejudiced by such failure. In case any such action shall be brought against any indemnified party, it shall notify the indemnifying party of the commencement thereof, and the indemnifying party shall be entitled to participate in, and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of the indemnifying party’s election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof; provided, however, that if (i) the indemnified party has reasonably concluded (based on advice of counsel) that there may be subjectlegal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (ii) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party), or (iii) the indemnifying party has not in fact employed counsel reasonably satisfactory to the indemnified party to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, the indemnified party shall have the right to employ a single counsel to represent it in any claim in respect of which indemnity may be sought under subsection (a) or (b) of this Section 8, in which event the reasonable fees and expenses of such proportions separate counsel shall be borne by the indemnifying party or parties and reimbursed to the indemnified party as incurred. The indemnifying party under this Section 8 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is a party or could be named and indemnity was or would be sought hereunder by such indemnified party, unless such settlement, compromise or consent (a) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such action, suit or proceeding and (b) 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.
(d) If the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering and sale of the Offered Securities or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of total underwriting discounts and commissions received by the Dealer-Manager Underwriters, in each case as set forth in Section 6 hereof actually received by the Dealer-Managertable on the cover page of the Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative relevant intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection (d) were to be determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in the first sentence of this Sectionsubsection (d). The aggregate amount paid by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, action or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionthat is the subject of this subsection (d). Notwithstanding the provisions of this Section 11: subsection (i) d), the Dealer-Manager Underwriters shall not be required to contribute any amount in excess of the fees actually received by amount of the Dealer-Manager from Underwriters’ discounts and commissions set forth in the Company in connection with table on the Rights Offering and (ii) no Person cover of the Prospectus. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes .
(e) The obligations of the Company under this Section 118 shall be in addition to any liability that the Company may otherwise have and the benefits of such obligations shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager person, if any, who controls the Underwriters within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability that the Underwriters may otherwise have and the benefits of such obligations shall extend, upon the same rights terms and conditions, to contribution as such Dealer-Managerthe Company, and officers, directors and each Person, if any, person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
(f) For purposes of this Agreement, each officer of the Underwriters confirm, and the Company who shall have signed acknowledges, that there is no information concerning the Underwriters furnished in writing to the Company by the Underwriters specifically for preparation of or inclusion in the Registration Statement and each director Statement, the Time of Sale Disclosure Package or the Company shall have Prospectus, other than the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseUnderwriters’ Information.
Appears in 3 contracts
Sources: Underwriting Agreement (PepperLime Health Acquisition Corp), Underwriting Agreement (PepperLime Health Acquisition Corp), Underwriting Agreement (PepperLime Health Acquisition Corp)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless and indemnify Maxim the Dealer-Manager and its affiliates and any officer, director, employee or agent of Maxim Source or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim the Dealer-Manager or any of such affiliates (collectively, the “Indemnified Parties”) from and against any and all (A) losses, claims, damages damages, liabilities and liabilities expenses whatsoever, under the Securities Act or otherwise (as incurred or sufferedsuffered and including, but not limited to, any and all legal or other expenses incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from the Dealer-Manager), (A) arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); , (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) any actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; Company or (iv) any failure by the Company to comply with any agreement or covenant covenant, contained in this Agreement; Agreement or (vB) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of MaximSource’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless If the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls indemnification provided for in the Company within foregoing paragraph is judicially determined to be unavailable (other than in accordance with the meaning of the Securities Act, from and against terms hereof) to any loss, claim, damage or liability, joint or several, or any action Indemnified Party otherwise entitled to indemnity in respect thereofof any losses, claims, damages or liabilities referred to which the Company or any such directorherein, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplementthen, in any other solicitation material used by the Company lieu of indemnifying such person hereunder, whether or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Informationis the person entitled to indemnification or reimbursement, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except contribute to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party the Indemnified Party as a result of the such losses, claims, damages, damages or liabilities or (and expenses referred relating thereto) (i) in such proportion as is appropriate to in reflect the immediately preceding paragraph shall be deemed relative benefits to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maximthe Dealer-Manager, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision Rights Offering or (including any investigation, legal and other expenses incurred ii) if the allocation provided for in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyclause (i) as incurred to which the Company and Maxim may be subjectabove is not available, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above in such clause (i) but also the relative fault of each of the Company, on Company and the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expensesDealer-Manager, as well as any other relevant equitable considerations. The relative benefits ; provided, however, in no event shall the Dealer-Manager’s aggregate contribution to the amount paid or payable exceed the aggregate amount of fees actually received by the CompanyDealer-Manger under this Agreement. For the purposes of this Agreement, on the one hand, relative benefits to the Company and Maxim, on to the other hand, Dealer-Manager of the engagement shall be deemed to be in the same proportion as: as (xa) the total proceeds from value paid or contemplated to be paid or received or contemplated to be received by the Company in the Rights Offering, whether or not the Rights Offering is consummated, bears to (net of b) the fees paid or to be paid to the Dealer-Manager under this Agreement.
(c) The Company also agrees that neither the Dealer-Manager, nor any other Indemnified Party, shall have any liability to the Company for or in connection with the Dealer-Manager’s engagement as Dealer-Manager, except for any such liability for losses, claims, damages, liabilities or expenses incurred by the Company which are finally judicially determined to have resulted primarily from the Dealer-Manager’s bad faith, willful misconduct, or gross negligence. The foregoing agreement shall be in addition to any rights that the Dealer-Manager, the Company or any Indemnified Party may have at common law or otherwise, including, but not limited to, any right to contribution. For the sole purpose of enforcing and otherwise giving effect to the provisions of this Agreement, the Company hereby consents to personal jurisdiction and service and venue in any court in which any claim which is subject to this agreement is brought against the Dealer-Manager or any other indemnified party.
(d) The Company agrees that it will not, without the prior written consent of the Dealer-Manager set forth Manager, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in Section 6 hereof, but before deducting expenses) received by the Company bears to respect of which indemnification or contribution may be sought hereunder (y) the fees of whether or not the Dealer-Manager set forth is an actual or potential party to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release, reasonably satisfactory in Section 6 hereof actually received by form and substance to the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by releasing the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty all liability arising out of such fraudulent misrepresentation. For purposes of this Section 11claim, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseproceeding.
Appears in 3 contracts
Sources: Dealer Manager Agreement (Chanticleer Holdings, Inc.), Dealer Manager Agreement (Chanticleer Holdings, Inc.), Dealer Manager Agreement (Reeds Inc)
Indemnification and Contribution. (a) The In the case of any offering registered pursuant to this Article III, the Company agrees to indemnify and hold harmless each Registering Stockholder, each underwriter, if any, of the Subject Securities under such registration and indemnify Maxim and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (the foregoing within the meaning of Section 20(a) 15 of the Exchange Securities Act) Maxim , and any officer, employee or any partner of such affiliates from and the foregoing, harmless against any and all (A) losses, claims, damages damages, or liabilities (including reasonable legal fees and liabilities whatsoever, other reasonable expenses incurred in the investigation and defense thereof) to which they or any of them may become subject under the Securities Act or otherwise (as incurred or sufferedcollectively "Losses"), arising insofar as any such Losses shall arise out of or shall be based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or registration statement relating to the sale of such Subject Securities (as amended if the Company shall have filed with the SEC any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offeringthereof), or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in the prospectus relating to the sale of such Subject Securities (as amended or supplemented if the Company shall have filed with the SEC any amendment thereof or supplement thereto), or the omission or alleged omission was to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the indemnification contained in this Section 3.5 shall not apply to such Losses which shall arise primarily out of or shall be based primarily upon any such untrue statement or alleged untrue statement, or any such omission or alleged omission, which shall have been made in reliance upon and in conformity with information furnished in writing to the Dealer-Manager InformationCompany by the Registering Stockholders or any such underwriter, as the case may be, specifically for use in connection with the preparation of the registration statement or prospectus contained in the registration statement or any such amendment thereof or supplement therein.
(b) In the case of each offering registered pursuant to this Article III, the Registering Stockholders and each underwriter, if any, participating therein shall reimburse agree, substantially in the same manner and to the same extent as set forth in the preceding paragraph, severally to indemnify and hold harmless the Company and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, and the directors and executive officers of the Company, with respect to any statement in or omission from such directorregistration statement or prospectus contained in such registration statement (as amended or as supplemented, officer if amended or controlling Person for any legal supplemented as aforesaid) if such statement or other expenses reasonably incurred omission shall have been made in reliance upon and in conformity with information furnished in writing to the Company by the Company Registering Stockholders or such underwriter, as the case may be, specifically for use in connection with the preparation of such registration statement or prospectus contained in such registration statement or any such director, officer amendment thereof or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredsupplement thereto.
(c) If Each party indemnified under this Section 3.5 shall, promptly after receipt of notice of the commencement of any lawsuit, claim or proceeding is brought ("Claim") against any such indemnified party in respect of which indemnification indemnity may be sought against the indemnifying party pursuant to this Section 11hereunder, such indemnified party shall promptly notify the indemnifying party in writing of the commencement thereof. The failure of such lawsuit, claim or proceeding; provided, however, that the failure any indemnified party to so to notify the an indemnifying party shall not relieve the indemnifying party from any obligation or liability in respect of such Claim which it may have under to such indemnified party on account of the indemnity contained in this Section 11 except to 3.5, unless (and only in the extent that it has been event) the indemnifying party was materially prejudiced in any material respect by such failure failure, and in any no event shall not such failure relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11party. In case any such lawsuit, claim or proceeding Claim in respect of which indemnification may be sought hereunder shall be brought against any indemnified party and such indemnified party it shall notify the an indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, to the extent that it may desire, jointly with any other indemnifying party similarly notified, to assume the defense thereof through counsel reasonably satisfactory to the indemnified party by notifying the indemnified party in writing of such election within 10 days after written receipt of the indemnified party's initial notice of the Claim, and after such notice from the indemnifying party to such indemnified party, party of its election so to assume the defense of such lawsuitthereof, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party not be liable to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, under this Section 3.5 for any legal or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and other expenses subsequently incurred by such indemnified party shall have in connection with the defense thereof, other than reasonable costs of investigation (unless such indemnified party reasonably concluded objects to such assumption on the grounds that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to such indemnifying party in which event the indemnified party shall be reimbursed by the indemnifying party (for the reasonable expenses incurred in which case connection with retaining separate legal counsel). If the indemnifying party undertakes to defend against such Claim within such 10-day period, the indemnifying party shall not have control the right investigation, defense and settlement thereof; provided that (i) the indemnifying party shall use its reasonable efforts to direct defend and protect the defense interests of the indemnified party with respect to such Claim, (ii) the indemnified party, prior to or during the period in which the indemnifying party assumes control of such action on behalf matter, may take such reasonable actions as the indemnified party deems necessary to preserve any and all rights with respect to such matter, without such actions being construed as a waiver of the indemnified party); 's rights to defense and indemnification pursuant to this Agreement, and (iii) the indemnifying party shall not have employed counsel satisfactory to such not, without the prior written consent of the indemnified party, consent to any settlement which (A) imposes any Liabilities on the indemnified party (other than those Liabilities which the indemnifying party agrees to promptly pay or discharge), and (B) with respect to any non- monetary provision of such settlement, would be likely, in the exercise of such indemnified party’s 's reasonable judgment, to represent have an adverse effect on the business operations, assets, properties or prospects of any Stockholder (in the event that a Registering Stockholder or any of its Affiliates is the indemnified party), or the Company (in the event that the Company is an indemnified party), or such indemnified party. If the indemnifying party does not undertake within a reasonable time after notice of the institution of any such lawsuit10-day period to defend against such Claim, claim or proceeding; or (iv) then the indemnifying party shall authorize have the right to participate in any such defense at its sole cost and expense, but the indemnified party to employ separate counsel at shall control the expense investigation, defense and settlement thereof (provided that the indemnified party may not settle any such Claim without obtaining the prior written consent of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party (which consent shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, withheld by the indemnifying party; provided that in the event that the indemnifying party agrees, subject to is in material breach at such time of the provisions of this Section 113.5, to indemnify then the indemnified party from shall not be obligated to obtain such prior written consent of the indemnifying party) at the reasonable cost and against expense of the indemnifying party (which shall be paid by the indemnifying party promptly upon presentation by the indemnified party of invoices or other documentation evidencing the amounts to be indemnified). In addition to the foregoing, no indemnifying party shall, without the prior written consent of the indemnified party, effect any losssettlement of any pending or threatened proceeding in respect of which the indemnified party could have been a party and indemnity could have been sought hereunder by such indemnified party, damage or liability by reason unless such settlement includes an unconditional release of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, indemnified party from all liability arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, such claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximproceeding.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held 3.5 is unavailable to be unavailable from any indemnifying an indemnified party or is insufficient to hold such indemnified party harmless a party from any Losses in respect of which this Section 3.5 would otherwise apply by its terms (other than by reason of exceptions provided herein), then each applicable indemnifying party, in lieu of indemnifying such indemnified thereunder, the Company, on the one hand, and Maxim, on the other handparty, shall have a joint and several obligation to contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated amount paid or payable by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case indemnified party as a result of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subjectsuch Losses, in such proportions proportion as is appropriate to reflect the relative benefits received by and fault of the Companyindemnifying party, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maximindemnified party, on the other hand, in connection with the statements or omissions offering to which resulted in such losses, claims, damages, liabilities or expenses, contribution relates as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, benefit shall be determined by reference to, among other things, whether the untrue or alleged untrue statement amount of a material fact or proceeds received by each party from the omission or alleged omission offering to state a material fact relates to information supplied which such contribution relates. The relative fault shall be determined by the Company or Maxim (which consists solely reference to, among other things, each party's relative knowledge and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information concerning the matter with respect to which the claim was asserted, and the opportunity to correct or and prevent such any statement or omission. The Company and amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any investigation or proceeding, to the Dealer-Manager extent such party would have been indemnified for such expenses if the indemnification provided for in this Section 3.5 was available to such party.
(e) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(f) 3.5 were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Sectionthe immediately preceding paragraph. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 3 contracts
Sources: Restructuring, Financing and Distribution Agreement (Lockheed Martin Corp), Stockholders Agreement (Loral Corp /Ny/), Stockholders Agreement (Lockheed Martin Corp)
Indemnification and Contribution. (a) The Company agrees Offerors jointly and severally agree to indemnify and hold harmless each Underwriter and indemnify Maxim each of its partners, officers, directors, and its affiliates employees and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of the Exchange Act) Maxim 1933 Act or any of such affiliates from and the 1934 Act against any and all (A) losses, claims, damages or liabilities, and liabilities whatsoeverany action in respect thereof (including, under but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Securities Act or otherwise (as incurred or sufferedCapital Securities), arising joint or several, which arises out of of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained in (A) the Offer Documents Registration Statement, or any amendment or supplement thereto, in including information deemed to be part of the Registration Statement pursuant to Rule 430A(b) of the 1933 Act Regulations, if applicable, (B) the Prospectus and any other solicitation material used by the Company amendment or authorized by it for use in connection with the Rights Offeringsupplement thereto, or in (C) any blue sky application or other document prepared document, any amendment or supplement thereto, executed by the Company (Offerors or based on any written upon information furnished by the Company) specifically for the purpose of qualifying any or all on behalf of the Rights or Offerors filed in any jurisdiction in order to qualify the Rights Shares or Rights Warrants Capital Securities under the securities or blue sky laws of any state or other jurisdiction thereof (any such applicationeach, document or information being hereinafter called a “Blue Sky an "Application”") or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documentsthe Registration Statement, or in any such amendment or supplementsupplement thereto, in the Prospectus or any other solicitation material used by the Company amendment or authorized by it for use in connection with the Rights Offeringsupplement thereto, or in any Blue Sky Application, any a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company as incurred each Underwriter and any each such director, officer or controlling Person person for any legal or and other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against or appearing as a third party witness in connection with any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceedingaction; provided, however, that neither of the failure Offerors shall be liable to any Underwriter in any such case to the extent that any such loss, claim, damage or liability arises out of, or is based upon, any untrue statement or alleged untrue statement made in the Prospectus, including any amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Offerors by or on behalf of such Underwriter specifically for inclusion and actually included therein; and provided further that, as to any Prospectus that has been amended or supplemented as provided herein, this indemnity agreement shall not inure to the benefit of any Underwriter, on account of any loss, claim, damage, liability or action arising out of the sale of Capital Securities to any person by such Underwriter if (A) such Underwriter failed to send or give a copy of the final Prospectus as so amended or supplemented to that person at or prior to the confirmation of the sale of such Capital Securities to such person in any case where such delivery is required by the 1933 Act, and (B) the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in any preliminary Prospectus was corrected in an amendment or supplement thereto (but only if the sale to such person occurred after the Offerors provided such Underwriter and the Underwriter received copies of such amendment or supplement for distribution). This indemnity agreement will be in addition to any liability which the Offerors may otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company, the Trust, the Trustees and each of the Company's directors, each of its officers and each person, if any, who controls the Company or the Trust within the meaning of the 1933 Act or the 1934 Act, to the same extent as the foregoing indemnity from the Offerors to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Offerors by such Underwriter and specifically included in the Prospectus. This indemnity shall be in addition to any liability which such Underwriter may otherwise have. The Offerors acknowledge that the statements set forth in the last paragraph of the cover page (p. S-4) and under the heading "Underwriting" or "Plan of Distribution" in the Prospectus constitute the only information furnished in writing by the several Underwriters for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against one or more indemnifying parties under this Section 6, notify such indemnifying party or parties of the commencement thereof; but the omission so to notify the indemnifying party shall or parties will not relieve it or them from any liability which it or they may have to any indemnified party otherwise than under subsection (a) or (b) of this Section 6 or to the extent that the indemnifying party from was not adversely affected by such omission. In case any obligation such action is brought against an indemnified party and it notifies an indemnifying party or liability parties of the commencement thereof, the indemnifying party or parties against which it may have under this Section 11 except a claim is to be made will be entitled to participate therein and, to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it they may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified partywish, to assume the defense of such lawsuitthereof, claim or proceeding with counsel of its choice at its expensereasonably satisfactory to such indemnified party; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) if the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case party, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party); party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (iii) it being understood, however, that in connection with such action the indemnifying party shall not have employed be liable for the expenses of more than one separate counsel satisfactory (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the lead Underwriter in the case of paragraph (a) of this Section 6, representing the indemnified parties under such paragraph (a) who are parties to such indemnified partyaction or actions), in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (ivii) the indemnifying party shall authorize such has authorized in writing the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not After such notice from the indemnified party is a formal indemnifying party to any such lawsuitindemnified party, claim or proceeding. The the indemnifying party shall will not be liable for the costs and expenses of any settlement of any lawsuitsuch action effected by such indemnified party without the consent of the indemnifying party, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with unless such consent, the indemnifying indemnified party agrees, subject to the provisions of waived its rights under this Section 11, to indemnify 6 in writing in which case the indemnified party from and against any loss, damage or liability by reason of may effect such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any a settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing without such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximconsent.
(d) The amount paid or payable by an indemnified party as a result of Company agrees to indemnify the Trust against all losses, claims, damages, damages or liabilities or expenses referred to in due from the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claimTrust under Section 6(a) hereof.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in the preceding paragraphs of this Section 11 for any reason held to be 6 is unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderunder paragraph (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then the Company, on Offerors or the one hand, and Maxim, on the other hand, Underwriters shall contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against same) to which the Offerors and one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the total discounts and/or commissions received by the Underwriters bears to the sum of such discounts and/or commissions and the purchase price of the Capital Securities specified in Schedule B hereto and the Offerors are responsible for the balance; provided, however, that (y) in no case shall any litigation, or Underwriter (except as may be provided in any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding agreement among Underwriters relating to the provisions offering of this Section 11: (ithe Capital Securities) the Dealer-Manager shall be required to contribute responsible for any amount in excess of the fees actually total discounts and/or commissions received by it with respect to the Dealer-Manager from the Company in connection with the Rights Offering Capital Securities purchased by such Underwriter under this Agreement and (iiz) no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 116, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange 1933 Act shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls either of the Company Offerors within the meaning of Section 15 of either the Securities 1933 Act or Section 20 of the 1934 Exchange Act, each officer or trustee of the Company Offerors who shall have signed the Registration Statement and each director or trustee of the Company Offerors shall have the same rights to contribution as the CompanyOfferors, subject in each case to clauses clause (i) and (iiy) of the immediately preceding sentencethis paragraph (e). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or partiesparties under this paragraph (e), notify each such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this Section 11(f) or otherwiseparagraph (e).
Appears in 3 contracts
Sources: Underwriting Agreement (Nb Capital Trust Iv), Underwriting Agreement (Nb Capital Trust Iii), Underwriting Agreement (Nb Capital Trust Ii)
Indemnification and Contribution. (a) The Company agrees to shall indemnify and hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and each Underwriter against any and all (A) lossesloss, claimsclaim, damages and liabilities whatsoeverdamage or liability, joint or several, as incurred, to which such Underwriter may become subject, under the Securities Act or otherwise otherwise, insofar as such loss, claim, damage or liability (as incurred or suffered), arising action in respect thereof) arises out of or is based upon: upon (i) any untrue statement or alleged untrue statement made by the Company in Section 1 hereof; or (ii) any untrue statement or alleged untrue statement of a material fact contained (A) in the Offer Documents Registration Statement, any Pre-Effective Prospectus, the Effective Prospectus, or the Final Prospectus or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or (B) in any blue sky application or other document prepared or executed by the Company (specifically for that purpose or based on any upon written information furnished by the Company) specifically for the purpose of qualifying Company filed in any state or other jurisdiction in order to qualify any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction thereof (any such application, document documents or information being hereinafter called a “Blue Sky Application”); or (iii) or arising out of or based upon the omission or alleged omission to state in the Registration Statement or any such document amendment thereto a material fact required to be stated therein or necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading, or the omission or alleged omission to state in any Pre-Effective Prospectus, the Effective Prospectus, the Final Prospectus or any supplement thereto or in any Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (misleading; and shall reimburse each Underwriter for any legal or other than statements expenses reasonably incurred by such Underwriter in connection with investigating or omissions defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action, except that the Company shall not be liable in any such case to the extent, but only to the extent, that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services written information furnished to the Company with respect to through the Rights Offering, and (B) all reasonable expenses (including, but not limited toRepresentative by or on behalf of any Underwriter specifically for use in the preparation of the Registration Statement, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. HoweverPre-Effective Prospectus, the Company will not be obligated to indemnify an indemnified party for Effective Prospectus, the Final Prospectus or any lossamendment or supplement thereto, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified partyBlue Sky Application.
(b) The Dealer-Manager Each Underwriter severally, but not jointly, shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereofas incurred, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, damage or liability (or action in respect thereof) arises out of, of or is based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained (A) in the Registration Statement any Offer DocumentsPre-Effective Prospectus, the Effective Prospectus, the Final Prospectus or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; , or (ii) the omission or alleged omission to state in the Registration Statement or any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any thereto a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, but or the omission or alleged omission to state in any Pre-Effective Prospectus, the Effective Prospectus, Final Prospectus or any supplement thereto or in any Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that such indemnification shall be available in each such case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany through the Representative by or on behalf of such Underwriter specifically for use in the preparation thereof, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredaction.
(c) If Promptly after receipt by an indemnified party under sub-section (a) or (b) above of notice of any lawsuit, claim or proceeding is brought against the commencement of any action the indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such an indemnified party otherwise than under this Section 11such subsection. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; providedaction, however, that such counsel the indemnifying party shall not be satisfactory liable to the indemnified party under such subsection for any legal or other expenses subsequently incurred by the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding, such indemnified party investigation; except that the Representative shall have the right to employ separate counsel to represent the Representative and those other Underwriters who may be subject to participate liability arising out of any claim in respect of which indemnity may be sought by the Underwriters against the Company under such subsection if, in the defense Representative reasonable judgment, based upon the advice of such lawsuitcounsel, claim or proceedingit is advisable for the Representative and those Underwriters to be represented by separate counsel, and in that event the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen be paid by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The If the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal subsection (a) or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(eb) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
above (fi) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering of the Shares or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Shares (before deducting expenses) received by the Company bears bear to (y) the fees of total underwriting discounts and commissions received by the Dealer-Manager Underwriters, in each case as set forth in Section 6 hereof actually received by the Dealer-Managertable on the cover page of the Final Prospectus. The relative fault of each of the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue or alleged untrue statement or omission or alleged omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection (d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in the first sentence of this Sectionsubsection (d). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of The Underwriters’ obligations in this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights subsection (d) to contribution as such Dealer-Manager, contribute are several in proportion to their respective underwriting obligations and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentencenot joint. Any Each party entitled to contribution will, promptly after receipt agrees that upon the service of notice of commencement of a summons or other initial legal process upon it in any action, suit or proceeding action instituted against such party it in respect of which a claim for contribution may be made against another party or partiessought, notify each it shall promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to so notify such party or parties of any such service shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have hereunder or otherwise (except as specifically provided in subsection (c) hereof).
(e) The obligations of the Company under Section 7 shall be in addition to any liability which the Company may otherwise have, and shall extend, upon the same terms and conditions, to each officer and director of each Underwriter and to each person, if any, who controls any Underwriter or the QIU within the meaning of the Securities Act; and the obligations of the Underwriters under this Section 11(f7 shall be in addition to any liability that the respective Underwriters may otherwise have, and shall extend, upon the same terms and conditions, to each director of the Company (including any person who, with his consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act, in either case, whether or not such person is a party to any action or proceeding.
(f) Without limitation of and in addition to its obligations under the other paragraphs of this Section 7, the Company agrees to indemnify and hold harmless the QIU, its partners, members, directors, officers, affiliates and each person, if any, who controls the QIU within the meaning of Section 15 of the Act from and against any and all losses, claims, damages or liabilities, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Shares) to which the QIU, director, officer, employee or controlling person may become subject, under the Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, the QIU’s acting as such “qualified independent underwriter” in connection with the offering contemplated by this Agreement; and agrees to reimburse each such indemnified party promptly upon demand for any legal or other expenses reasonably incurred by them in connection with investigating or defending or preparing to defend any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that it is determined in a final judgment by a court of competent jurisdiction that such loss, claim, damage, liability or action resulted directly from the gross negligence or willful misconduct of the QIU. The relative benefits received by the QIU with respect to the offering contemplated by this Agreement will, for purposes of Section 7(d), be deemed to be equal to the compensation received by the QIU for acting in such capacity. In addition, notwithstanding the provisions of Section 7(d), the QIU will not be required to contribute any amount in excess of the compensation received by the QIU for acting in such capacity.
Appears in 3 contracts
Sources: Underwriting Agreement (Wilson Holdings, Inc.), Underwriting Agreement (Wilson Holdings, Inc.), Underwriting Agreement (Wilson Holdings, Inc.)
Indemnification and Contribution. (a) The Company agrees to hold harmless Issuer and indemnify Maxim and its affiliates and any officerConsumers agree, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect extent permitted by law, to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its the Underwriters, their officers and directors and each Personperson, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act, Exchange Act or otherwise, and to reimburse the Underwriters and such controlling person or persons, if any, for any legal or other expenses incurred by them in connection with defending any action, suit or proceeding (including governmental investigations) as provided in Section 11(c) hereof, insofar as such losses, claims, damages, liabilities or actions, suits or proceedings (including governmental investigations) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Pricing Prospectus, the Pricing Package or the Final Prospectus, or if the Final Prospectus shall be amended or supplemented, in the Final Prospectus as so amended or supplemented (if such Final Prospectus or such Final Prospectus as amended or supplemented is used after the period of time referred to in Sections 8(a)(iv) and 8(b)(iii) hereof, it shall contain or be used with such amendments or supplements as the Issuer and Consumers deem necessary to comply with Section 10(a) of the Securities Act), the information contained in the Term Sheets, any other Issuer Free Writing Prospectus or any issuer information (within the meaning of Rule 433 under the Securities Act) filed or required to be filed pursuant to Rule 433(d) under the Securities Act or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or actions, suits or proceedings (including governmental investigations) arise out of or are based upon any such untrue statement or alleged untrue statement or omission or alleged omission that was made in such Registration Statement, the Pricing Package, Final Prospectus, the Term Sheets or any other Issuer Free Writing Prospectus or any issuer information (within the meaning of Rule 433 under the Securities Act) filed or required to be filed pursuant to Rule 433(d) under the Securities Act in reliance upon and in conformity with information furnished in writing to the Issuer and Consumers through the Representatives on behalf of any Underwriters expressly for use therein. Notwithstanding the foregoing, the indemnity agreement contained in this Section 11(a) with respect to any untrue statement in or omission from the Pricing Prospectus shall not inure to the benefit of the Underwriters (or any other party described in this Section 11(a)) to the extent that the sale of the Bonds to the person or entity asserting any such loss, claim, damage or liability was an initial resale by the Underwriters and any such loss, claim, damage or liability with respect to the Underwriters results from the fact that both (i) copies of the Preliminary Term Sheet or Pricing Term Sheet were not conveyed to such person or entity at or prior to the written confirmation of the sale of such Bonds to such person or entity and (ii) the untrue statement in or omission from the Pricing Prospectus was corrected in such Preliminary Term Sheet or Pricing Term Sheet. The indemnity agreement contained in this Section 11(a), and the covenants, representations and warranties of the Issuer and Consumers contained in this Agreement, shall remain in full force and effect regardless of any investigation made by or on behalf of any person, and shall survive the delivery of and payment for the Bonds hereunder, and the indemnity agreement contained in this Section 11 shall survive any termination of this Agreement. The liabilities of the Issuer or Consumers in this Section 11(a) are in addition to any other liabilities of the Issuer or Consumers under this Agreement or otherwise.
(b) Each Underwriter agrees, severally and not jointly, to the extent permitted by law, to indemnify, hold harmless and reimburse the Issuer and Consumers, each of the Issuer’s and Consumers’ managers and directors and such of the officers of the Company who Issuer and Consumers as shall have signed the Registration Statement and directors each person, if any, who controls the Issuer or Consumers within the meaning of Section 15 of the CompanySecurities Act or Section 20 of the Exchange Act, to the same extent and upon the same terms as the indemnity agreement of the Issuer and Consumers as set forth in Section 11(a) hereof, but only with respect to alleged untrue statements or omissions made in the Registration Statement, the Pricing Package, the Final Prospectus, as incurred amended or supplemented (if applicable), the Term Sheets or any other Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Issuer and the Consumers through the Representatives on behalf of such Underwriter expressly for use therein. The Issuer and Consumers acknowledge that the only such information furnished in writing to the Issuer and Consumers as of the date hereof is set forth in Schedule IV hereto (the “Underwriter Information”). The indemnity agreement on the part of each Underwriter contained in this Section 11(b) and the covenants, representations and warranties of such Underwriter contained in this Underwriting Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Issuer, Consumers or any other person, and shall survive the delivery of and payment for the Bonds hereunder, and the indemnity agreement contained in this Section 11 shall survive any termination of this Agreement. The liabilities of each Underwriter in this Section 11(b) are in addition to any other liabilities of such Underwriter under this Agreement or otherwise.
(c) If a claim is made or an action, suit or proceeding (including governmental investigation) is commenced or threatened against any person as to which indemnity may be sought under Section 11(a) hereof or Section 11(b) hereof, such person (the “Indemnified Person”) shall notify the person against whom such indemnity may be sought (the “Indemnifying Person”) promptly after any assertion of such claim, promptly after any threat is made to institute an action, suit or proceeding or, if such an action, suit or proceeding is commenced against such Indemnified Person, promptly after such Indemnified Person shall have been served with a summons or other first legal process, giving information as to the nature and basis of the claim. Failure to so notify the Indemnifying Person shall not, however, relieve the Indemnifying Person from any liability that it may have on account of the indemnity under Section 11(a) hereof or Section 11(b) hereof if the Indemnifying Person has not been prejudiced in any material respect by such failure. Subject to the immediately succeeding sentence, the Indemnifying Person shall assume the defense of any such litigation or proceeding, including the employment of counsel and the payment of all expenses, with such counsel being designated, subject to the immediately succeeding sentence, in writing by the Representatives in the case of parties indemnified pursuant to Section 11(b) hereof and by the Issuer or Consumers in the case of parties indemnified pursuant to Section 11(a) hereof. Any Indemnified Person shall have the right to participate in such litigation or proceeding and to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include (x) the Indemnifying Person and (y) the Indemnified Person and, in the written opinion of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or likely conflicts of interest between them, in either of which cases the reasonable fees and expenses of counsel (including disbursements) for such Indemnified Person shall be reimbursed by the Indemnifying Person to the Indemnified Person. If there is a conflict as described in clause (ii) above, and the Indemnified Person(s) have participated in the litigation or proceeding utilizing separate counsel whose fees and expenses have been reimbursed by the Indemnifying Person and the Indemnified Person(s), or any of them, are found in a final judicial determination to be liable, such Indemnified Person(s) shall repay to the Indemnifying Person such fees and expenses of such separate counsel as the Indemnifying Person shall have reimbursed. It is understood that the Indemnifying Person shall not, in connection with any litigation or proceeding or related litigation or proceedings in the same jurisdiction as to which the Company Indemnified Person(s) are entitled to such separate representation, be liable under this Agreement for the reasonable fees and Maxim may out-of-pocket expenses of more than one separate firm (together with not more than one appropriate local counsel) for all such Indemnified Persons. Subject to the next paragraph, all such fees and expenses shall be subjectreimbursed by payment to the Indemnified Person(s) of such reasonable fees and expenses of counsel promptly after payment thereof by the Indemnified Person(s). In furtherance of the requirement above that fees and expenses of any separate counsel for the Indemnified Person(s) shall be reasonable, the Underwriters, the Issuer and Consumers agree that the Indemnifying Person’s obligations to pay such fees and expenses shall be conditioned upon the following:
(1) in case separate counsel is proposed to be retained by the Indemnified Person(s) pursuant to clause (ii) of the preceding paragraph, the Indemnified Person(s) shall in good faith fully consult with the Indemnifying Person in advance as to the selection of such counsel;
(2) reimbursable fees and expenses of such separate counsel shall be detailed and supported in a manner reasonably acceptable to the Indemnifying Person (but nothing herein shall be deemed to require the furnishing to the Indemnifying Person of any information, including, without limitation, computer print-outs of lawyers’ daily time entries, to the extent that, in the judgment of such proportions counsel, furnishing such information might reasonably be expected to result in a waiver of any attorney-client privilege); and
(3) the Issuer, Consumers and the Representatives shall cooperate in monitoring and controlling the fees and expenses of separate counsel for Indemnified Person(s) for which the Indemnifying Person is liable hereunder, and the Indemnified Person(s) shall use reasonable effort to cause such separate counsel to minimize the duplication of activities as between themselves and counsel to the Indemnifying Person. The Indemnifying Person shall not be liable for any settlement of any litigation or proceeding effected without the written consent of the Indemnifying Person, but, if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees, subject to the provisions of this Section 11, to indemnify the Indemnified Person from and against any loss, damage, liability or expense by reason of such settlement or judgment. The Indemnifying Person shall not, without the prior written consent of the Indemnified Person(s), effect any settlement of any pending or threatened litigation, proceeding or claim in respect of which indemnity has been properly sought by the Indemnified Person(s) hereunder, unless such settlement includes an unconditional release by the claimant of all Indemnified Persons from all liability with respect to claims that are the subject matter of such litigation, proceeding or claim and 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.
(d) If the indemnification provided for above in this Section 11 is unavailable to or insufficient to hold harmless an Indemnified Person under such Section 11 in respect of any losses, claims, damages or liabilities (or actions, suits or proceedings (including governmental investigations) in respect thereof) referred to therein, then each Indemnifying Person under this Section 11 shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company, Indemnifying Person on the one hand, hand and Maxim, the Indemnified Person on the other hand, from the Rights Offering oroffering of the Bonds. If, if such however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each Indemnifying Person shall contribute to such amount paid or payable by such Indemnified Person in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Companyeach Indemnifying Person, if any, on the one hand, hand and Maxim, the Indemnified Person on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damagesdamages or liabilities (or actions, liabilities suits or expensesproceedings (including governmental investigations) in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Issuer and Consumers on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) Issuer and the fees of total discounts or commissions received by the Dealer-Manager Underwriters, in each case as set forth in Section 6 hereof actually received by the Dealer-Managertable on the cover page of the Final Prospectus, bear to the aggregate public offering price of the Bonds. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Issuer and Consumers on the one hand or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Issuer, Consumers and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f) 11 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this SectionSection 11. The aggregate amount paid or payable by an Indemnified Person as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions, suits or proceedings (including governmental proceedings) in respect thereof) referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party Indemnified Person in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue actions, suits or alleged untrue statement proceedings (including governmental proceedings) or omission or alleged omissionclaims, provided that the provisions of this Section 11 have been complied with (in all material respects) in respect of any separate counsel for such Indemnified Person. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager , no Underwriter shall be required to contribute any amount in excess of the fees actually received purchase discount or commission applicable to the Bonds purchased by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person such Underwriter hereunder. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of The Underwriters’ obligations in this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights 11 to contribute are several in proportion to their respective underwriting obligations and not joint. The agreement with respect to contribution as such Dealer-Manager, contained in this Section 11(d) shall remain in full force and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement effect regardless of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.investigation
Appears in 3 contracts
Sources: Underwriting Agreement (Consumers Energy Co), Underwriting Agreement (Consumers 2014 Securitization Funding LLC), Underwriting Agreement (Consumers 2014 Securitization Funding LLC)
Indemnification and Contribution. For purposes of this Section 7, “Prospectus Supplement” shall include any prospectus supplement relating to the Units filed with the Commission pursuant to Rule 424(b) of the Rules.
(a) The Company agrees to Partnership will indemnify and hold harmless and indemnify Maxim the Manager and its respective affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls the Manager within the meaning of Section 20(a) 15 of the Act or Section 20 of the Exchange Act, as follows:
(i) Maxim or any of such affiliates from and against any and all loss, liability, claim, damage and expense whatsoever (including the reasonable cost of investigation), to which the Manager or any such person may become subject, (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement (or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering), or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement to such documents), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, or (B) resulting from the use of any issuer free writing prospectus (as defined in Rule 433 of the Rules) or prospectus, other than statements the Prospectus, relating to the Units, whether or omissions made not filed by the Partnership or on its behalf; provided, however, that this indemnity does not apply to the extent any such issuer free writing prospectus or prospectus is also used by the Manager;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 7(d) below) any such settlement is effected with the written consent of the Partnership; and
(iii) against any and all expense whatsoever, as incurred (including, subject to Section 7(c) hereof, the fees and disbursements of counsel chosen by the Manager), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clause (i) or (ii) above; provided, however, that the indemnity set forth in this Section 7(a) shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission contained in the Registration Statement or any Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Dealer-Manager Information); (ii) any withdrawal Partnership by or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent on behalf of the Company Manager expressly for use in the Registration Statement or in conformity with actions taken any Prospectus (or omitted any amendment or supplement to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified partysuch documents).
(b) The Dealer-Manager shall agrees to indemnify and hold harmless the Partnership, the General Partner, the Company, its officersthe directors of the General Partner and the Company, directors and employeesthe officers of the Company who signed the Registration Statement, each of its directors and each Personperson, if any, who controls the Partnership, the General Partner or the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all loss, liability, claim, damage or liabilityand expense described in the indemnity contained in Section 7(a) (provided that with respect to indemnification of the nature contemplated by Section 7(a)(ii), joint or several, or such indemnification by the Manager for a settlement of any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, liability, claim, damagedamage and expense must be effected with the written consent of the Manager), liability or action arises out ofas incurred, or is based upon: (i) but only with respect to any untrue statement statements or omissions, or alleged untrue statement of a material fact contained statements or omissions, made in the Registration Statement or any Prospectus (A) in or any Offer Documents, or in any such amendment or supplementsupplement to such documents), in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Partnership by or on behalf of the Manager Informationexpressly for use in the Registration Statement, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company Base Prospectus or any Prospectus (or any amendment or supplement to such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurreddocuments).
(c) If any lawsuit, claim or proceeding is brought against any Each indemnified party shall give written notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnification indemnity may be sought against the indemnifying party pursuant hereunder, but failure to this Section 11, such indemnified party shall promptly so notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the an indemnifying party shall not relieve the such indemnifying party from any obligation or liability which it may have under this Section 11 except hereunder to the extent that it has been is not materially prejudiced in any material respect by such failure as a result thereof and in any event shall not relieve the indemnifying party it from any other obligation or liability which it may have to such indemnified party otherwise than under on account of this Section 11indemnity agreement. In the case any such lawsuitof parties indemnified pursuant to Section 7(a) above, claim or proceeding counsel to the indemnified parties shall be brought against any indemnified party and such indemnified party shall notify selected by the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceedingManager, and, in the case of parties indemnified pursuant to Section 7(b) above, counsel to the indemnified parties shall be selected by the Partnership, provided that if it so elects within a reasonable time after written notice from the receipt of such notice, an indemnifying party to such indemnified party, to jointly with any other indemnifying parties receiving such notice, may assume the defense of such lawsuit, claim or proceeding action with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by it and approved by the indemnifying party to represent indemnified parties defendant in such action, unless such indemnified party would present parties reasonably object to such counsel with a conflict of interest; (ii) assumption on the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded ground that there may be legal defenses available to it or to other indemnified parties them which are different from or in addition to those available to such indemnifying party. If an indemnifying party assumes the defense of such action, the indemnifying parties shall not be liable for any fees and expenses of counsel for the indemnified parties incurred thereafter in connection with such action; provided, however, that the indemnifying party shall pay the fees and expenses of separate counsel for the indemnified party if (i) the indemnifying party has agreed to pay such fees and expenses or (ii) counsel for the indemnified party reasonably determines that representation of both the indemnifying party and the indemnified party by the same counsel would create a conflict of interest. An indemnifying party may participate at its own expense in which case the defense of any such action; provided, however, that counsel to the indemnifying party shall not have (except with the right to direct the defense of such action on behalf consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not the indemnified parties are actual or potential parties thereto); , unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 7(a)(ii) 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) the such indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent reimbursed such indemnified party within a reasonable in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding sentence, if at any time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the an indemnified party shall have requested an indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not reimburse the indemnified party is a formal party to any such lawsuitfor fees and expenses of counsel, claim or proceeding. The an indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding the nature contemplated by Section 7(a)(ii) effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a(i) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by reimburses such indemnified party in connection accordance with investigatingsuch request to the extent it considers such request to be reasonable and (ii) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, preparing in each case prior to defend or defending any the date of such action or claimsettlement.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 7 is for any reason held unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderin respect of any losses, the Companyliabilities, on the one handclaims, and Maximdamages or expenses referred to therein, on the other hand, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages, liabilities damages and expenses of the nature contemplated incurred by such indemnification provision indemnified party, as incurred, (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyi) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the CompanyPartnership, on the one hand, and Maximthe Manager, on the other hand, from the Rights Offering or, offering of the Units pursuant to this Agreement or (ii) if such the allocation provided by clause (i) is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the CompanyPartnership, on the one hand, and Maximof the Manager, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages, liabilities damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the CompanyPartnership, on the one hand, and Maximthe Manager, on the other hand, in connection with the offering of the Units pursuant to this Agreement shall be deemed to be in the same proportion as: (x) respective proportions as the total proceeds Net Proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) Units pursuant to this Agreement received by the Company bears to (y) Partnership, and the fees of the Dealer-Manager set forth in Section 6 hereof actually total compensation received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case as provided in Section 3(a)(iv), bear to clauses (i) and (ii) the gross sales price of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit Units sold by or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.through the
Appears in 3 contracts
Sources: Equity Distribution Agreement (Kinder Morgan Energy Partners L P), Equity Distribution Agreement (Kinder Morgan Energy Partners L P), Equity Distribution Agreement (Kinder Morgan Energy Partners L P)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, Affiliates and indemnify Maxim agents of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) (x) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, Registration Statement as originally filed or in any blue sky application amendment thereof, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but or (y) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which those statements were made, not misleading; and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information furnished to the Company and by or on behalf of any such director, officer or controlling Person Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any legal or other expenses reasonably incurred by liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Notes and, under the heading “Underwriting”, (ii) the list of Underwriters and their respective participation in the sale of the Notes, (iii) the sentences related to concessions and reallowances and (iv) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredIssuer Free Writing Prospectus.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in such lawsuit, claim or proceeding, and, after written notice from any action for which indemnification is sought (in which case the indemnifying party to such indemnified shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, to assume retained by the defense of such lawsuit, claim indemnified party or proceeding with counsel of its choice at its expenseparties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party’s election of to appoint counsel (including local counsel) to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the actual or potential defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which that are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); , (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; action or (iv) the indemnifying party shall authorize such the indemnified party to employ separate counsel at the expense of the indemnifying party; provided, however, that an indemnifying party shall not be liable for the fees and expenses of more than one such separate counsel (in addition to local counsel) in connection with any proceeding or related proceeding in the same jurisdiction. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The An indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld)consent, but if settled with such consentconsent or if there be a final judgment for the plaintiff, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the indemnified party from and against any loss, damage claim, damage, liability or liability reasonable expense by reason of such settlementsettlement or judgment subject to and in accordance with paragraph (a) or (b) of this Section 8, as applicable. The Company agrees to notify Maxim promptlyAn indemnifying party will not, or cause Maxim to be notified promptly, without the prior written consent of the assertion indemnified parties, settle or compromise or consent to the entry of any lawsuitjudgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or proceeding against the Companyaction) unless such settlement, any compromise or consent includes an unconditional release of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, each indemnified party from all liability arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuitsuch claim, claim action, suit or proceeding against it arising out and does not include any statement as to, or any admission of, fault, culpability or a failure to act by or on behalf of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid In the event that the indemnity provided in paragraph (a) or payable by an indemnified party as a result (b) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held 8 is unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderfor any reason, the Company, on the one hand, and Maximthe Underwriters, on the other handother, shall severally agree to contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and or other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit with investigating or proceeding or any claims asserted, but after deducting in defending the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companysame) as incurred (collectively “Losses”) to which the Company and Maxim one or more of the Underwriters may be subject, subject in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, by the Underwriters on the other hand, from the Rights Offering oroffering of the Notes; provided, if however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Notes) be responsible for any amount in excess of the underwriting discount or commission, as the case may be, applicable to the Notes purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is not permitted by applicable lawunavailable for any reason, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maximthe Underwriters, on the other, severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company, on the one hand, and Maxim, on the other hand, Company shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually it, and benefits received by the Dealer-Manager. The relative fault of Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Company, on the one hand, and Maxim, on the other hand, Final Prospectus. Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied provided by the Company on the one hand or Maxim (which consists solely and exclusively the Underwriters on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionabove. Notwithstanding the provisions of this Section 11: paragraph (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 118, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee, Affiliate and agent of an Underwriter shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses the applicable terms and conditions of this paragraph (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwised).
Appears in 3 contracts
Sources: Underwriting Agreement (NIKE, Inc.), Underwriting Agreement (Nike Inc), Underwriting Agreement (Nike Inc)
Indemnification and Contribution. (a) The Company agrees and the Operating Partnership, jointly and severally, agree to indemnify, defend and hold harmless and indemnify Maxim each Agent and its affiliates affiliates, its and their directors, officers, employees and agents and any officer, director, employee or agent of Maxim or any person who controls such affiliates and any Person controlling (Agent within the meaning of Section 20(a) 15 of the Act or Section 20 of the Exchange Act) Maxim or any , and the successors and assigns of such affiliates all of the foregoing persons, from and against any and all loss, damage, expense, liability or claim (A) lossesincluding the reasonable cost of investigation), claimsas incurred, damages and liabilities whatsoeverwhich, jointly or severally, such Agent or any such person may incur under the Securities Act Act, the Exchange Act, the common law or otherwise (otherwise, insofar as incurred such loss, damage, expense, liability or suffered), arising claim arises out of or is based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, Registration Statement (or in the Registration Statement as amended by any blue sky application or other document prepared or executed by the Company (or based on any written information furnished post effective amendment thereof by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arises out of or is based upon the any omission or alleged omission to state in any such document a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information concerning any Agent furnished in writing by or on behalf of such Agent to the Company expressly for use in, the Registration Statement or arises out of or is based upon any omission or alleged omission to state a material fact in the Registration Statement in connection with such information, which material fact was not contained in such information and which material fact was required to be stated in such Registration Statement or was necessary to make such information not misleading or (ii) any untrue statement or alleged untrue statement of a material fact included in any Prospectus (the term Prospectus for the purpose of this Section 7 being deemed to include any Basic Prospectus, any Prospectus Supplement, any Prospectus and any amendments or supplements to the foregoing), in any Permitted Free Writing Prospectus, in any “issuer information” (as defined in Rule 433 under the Act) of the Company or in any Prospectus together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements misleading, except, with respect to such Prospectus or omissions made in reliance Permitted Free Writing Prospectus, insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with the Dealer-Manager Information); (ii) information concerning any withdrawal Agent furnished in writing by or termination by on behalf of such Agent to the Company ofexpressly for use in, such Prospectus or failure by the Company Permitted Free Writing Prospectus or arises out of or is based upon any omission or alleged omission to make state a material fact in such Prospectus or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or Permitted Free Writing Prospectus in connection with or alleged such information, which material fact was not contained in such information and which material fact was necessary in order to arise out ofmake the statements in such information, relate to or be in connection with, the Rights Offering, any light of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringcircumstances under which they were made, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified partymisleading.
(b) The Dealer-Manager shall indemnify Each Agent, severally and not jointly, agrees to indemnify, defend and hold harmless the CompanyCompany and the Operating Partnership, its their directors and officers, directors and employees, each of its directors and each Person, if any, any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons from and against any loss, claimdamage, damage expense, liability or liabilityclaim (including the reasonable cost of investigation) which, joint jointly or severalseverally, or any action in respect thereofthe Company, to which the Company Operating Partnership or any such director, officer or controlling Person person may become subject, incur under the Securities Act Act, the Exchange Act, the common law or otherwise, insofar as such loss, claimdamage, damageexpense, liability or action claim arises out of, of or is based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained (A) in, and in conformity with information concerning any Offer Documents, Agent furnished in writing by or in any on behalf of such amendment or supplement, in any other solicitation material used by Agent to the Company or authorized by it the Operating Partnership expressly for use in, the Registration Statement (or in connection with the Rights Offering Registration Statement as amended by any post effective amendment thereof by the Company), or (B) in arises out of or is based upon any Blue Sky Application; or (ii) the omission or alleged omission to state a material fact in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use Registration Statement in connection with the Rights Offeringsuch information, or in any Blue Sky Application, any which material fact was not contained in such information and which material fact was required to be stated therein in such Registration Statement or was necessary to make the statements therein such information not misleading, but in each case solely and exclusively to the extent that the misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information concerning any Agent furnished in writing by or on behalf of such Agent to the Company or the Operating Partnership expressly for use in, the Prospectus Supplement or a Permitted Free Writing Prospectus, or arises out of or is based upon any omission or alleged omission was made to state a material fact in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer Prospectus Supplement or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person a Permitted Free Writing Prospectus in connection with investigating or defending or preparing such information, which material fact was not contained in such information and which material fact was necessary in order to defend against any make the statements in such lossinformation, claimin the light of the circumstances under which they were made, damage, liability or action as such expenses are incurrednot misleading.
(c) If any lawsuitaction, claim suit or proceeding (each, a “Proceeding”) is brought against any a person (an “indemnified party party”) in respect of which indemnification indemnity may be sought against the Company, the Operating Partnership or any Agent (as applicable, the “indemnifying party party”) pursuant to subsection (a) or (b), respectively, of this Section 11Section, such indemnified party shall promptly notify the such indemnifying party in writing of the commencement institution of such lawsuitProceeding and such indemnifying party shall assume the defense of such Proceeding, claim or proceedingincluding the employment of counsel reasonably satisfactory to such indemnified party and payment of all fees and expenses; provided, however, that the failure omission to so to notify the such indemnifying party shall not relieve the such indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such or otherwise. The indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party parties shall have the right to employ separate its or their own counsel in any such case, but the fees and to participate expenses of such counsel shall be at the expense of such indemnified party or parties unless the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such lawsuit, claim Proceeding or proceeding, and the indemnifying party shall bear not have, within a reasonable period of time in light of the reasonable feescircumstances, costs and expenses of employed counsel to defend such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent Proceeding or such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party parties shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties them which are different from from, additional to or in addition to conflict with those available to the such indemnifying party (in which case the such indemnifying party shall not have the right to direct the defense of such action Proceeding on behalf of the indemnified partyparty or parties); , in any of which events such fees and expenses shall be borne by such indemnifying party and paid as incurred (iii) the it being understood, however, that such indemnifying party shall not have employed be liable for the expenses of more than one separate counsel satisfactory (in addition to any local counsel) in any one Proceeding or series of related Proceedings in the same jurisdiction representing the indemnified parties who are parties to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceedingProceeding). The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding Proceeding effected without its written consent (which consent will not be unreasonably withheld)but, but if settled with such its written consent, the such indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify and hold harmless the indemnified party or parties from and against any lossloss or liability, damage or liability as incurred, by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of Notwithstanding the foregoing within sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the meaning indemnified party for fees and expenses of counsel as contemplated by the second sentence of this Section 20(a) of 7(c), then the Exchange Act, arising out of or relating the Rights Offering. The Company further indemnifying party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 business days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not have fully reimbursed the indemnified party in accordance with such request prior to the date of such settlement and (iii) such indemnified party shall have given the indemnifying party at least 30 days’ prior notice of its intention to settle. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened Proceeding in respect of which any indemnified party is or could have been a lawsuitparty and indemnity could have been sought hereunder by such indemnified party, claim or proceeding against it arising out unless such settlement includes an unconditional release of Rights Offering shall such indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an explicit and unconditional release from the parties bringing admission of fault or culpability or a failure to act by or on behalf of such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held 7 is unavailable to be unavailable from any indemnifying an indemnified party under subsections (a) and (b) of this Section 7 or is insufficient to hold an indemnified party harmless a in respect of any losses, damages, expenses, liabilities or claims referred to therein, then each applicable indemnifying party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damagesexpenses, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyclaims (i) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company and the Operating Partnership on the one hand, and Maximthe Agents, on the other hand, from the Rights Offering or, offering of the Shares or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the CompanyCompany and the Operating Partnership, on the one hand, and Maximof the relevant Agent(s), on the other handother, in connection with the statements or omissions which resulted in such losses, claimsdamages, damagesexpenses, liabilities or expensesclaims, as well as any other relevant equitable considerations. The relative benefits received by the CompanyCompany and the Operating Partnership, on the one hand, and Maximthe relevant Agents, on the other handother, shall be deemed to be in the same proportion as: (x) respective proportions as the total proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, underwriting discounts and commissions but before deducting expenses) received by the Company bears to (y) and the fees of Operating Partnership, and the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-Managerrelevant Agent, bear to the aggregate public offering price of the Shares. The relative fault of each of the CompanyCompany and the Operating Partnership, on the one hand, and Maximof the relevant Agent, on the other handother, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Operating Partnership or Maxim (which consists solely and exclusively of by the Dealer-Manager Information) relevant Agent and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to in this subsection shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating, preparing to defend or defending any Proceeding.
(e) The Company, the Dealer-Manager Operating Partnership and each of the Agents agree that it would not be just and equitable if contribution pursuant to this Section 11(f) 7 were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionsubsection (d) above. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager 7, no Agent shall be required to contribute any amount in excess of the fees actually commissions received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person it under this Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within .
(f) The Company and the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-ManagerOperating Partnership, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 Agents agree promptly to notify each other of the Exchange Actcommencement of any Proceeding against it and, each officer in the case of the Company who shall have signed and the Operating Partnership, against any of the Company’s officers or directors in connection with the issuance and sale of the Shares, or in connection with the Registration Statement and each director of Statement, the Company shall have Basic Prospectus, the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of Prospectus or any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwisePermitted Free Writing Prospectus.
Appears in 3 contracts
Sources: Equity Distribution Agreement (Global Net Lease, Inc.), Equity Distribution Agreement (Global Net Lease, Inc.), Equity Distribution Agreement (Global Net Lease, Inc.)
Indemnification and Contribution. (a) The To the extent permitted by law, the Company agrees to indemnify and hold harmless each Holder and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Holder within the meaning of Section 20(a) 15 of the Securities Act or Section 20 of the Exchange Act) Maxim or any , and each of such affiliates from their respective officers, directors and employees against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, or actions in respect thereof to which such Holder or persons may become subject under the Securities Act Act, or otherwise (as incurred or sufferedcollectively, "Losses"), arising insofar as such Losses arise out of of, or are based upon: (i) , any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Registration Statement, any related Preliminary Prospectus or any related Prospectus, or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offeringarise out of, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse such Holder or persons for any legal or other expenses reasonably incurred by them in each case solely and exclusively connection with investigating or defending any such Losses; provided, however, that the Company shall not be so liable to the extent that any such Losses arise out of, or are based upon, an untrue statement or alleged untrue statement of a material fact or an omission or alleged omission to state a material fact in said Registration Statement in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of such Holder specifically for use therein. Notwithstanding the foregoing, the Company shall not be liable in any such instance to the extent that any such Losses arise out of, or are based upon, an untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon any Preliminary Prospectus if (i) after the Company had made available sufficient number of copies of the Prospectus, such Holder failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities to the person asserting such Losses or who purchased the Registrable Securities the purchase of which is the basis of the action if, in either instance, such delivery by such Holder is required by the Securities Act and (ii) the Prospectus would have corrected such untrue statement or alleged untrue statement or alleged omission; and the Company shall not be liable in conformity any such instance to the extent that any such Losses arise out of, or are based upon, an untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in the Prospectus, if such untrue statement or alleged untrue statement, omission or alleged omission is corrected in an amendment or supplement to the Prospectus and if, having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such Holder thereafter fails to deliver such Prospectus as so amended or supplemented, prior to or concurrently with the Dealer-Manager Informationsale of Registrable Securities if such delivery by such Holder is required by the Securities Act. This indemnity agreement will be in addition to any liability which the Company may otherwise have and shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any such Person and shall survive the Termination Date and the transfer of Registrable Securities by such Holder as otherwise permitted hereby.
(b) To the extent permitted by law, each Holder severally agrees to indemnify and hold harmless the Company, each other Holder and each person, if any, who controls the Company or such other Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall their respective officers, directors and employees, against any Losses to which the Company, such other Holder or such persons may become subject under the Securities Act, or otherwise, insofar as such Losses arise out of, or are based upon, any untrue statement or alleged untrue statement of any material fact contained in such Registration Statement, any related Preliminary Prospectus or any related Prospectus, or any amendment or supplement thereto, or arise out of, or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and any Company, such director, officer other Holder or controlling Person such persons for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person them in connection with investigating or defending or preparing to defend against any such lossLosses, claimin each instance to the extent, damagebut only to the extent, that any such Losses arise out of, or are based upon, an untrue statement or alleged untrue statement of a material fact or an omission or alleged omission to state a material fact in said Registration Statement, said Preliminary Prospectus or said Prospectus, or any said amendment or supplement thereto in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of such Holder specifically for use therein; provided, however, that the liability of each Holder under this Section 3.7(b) shall be limited to an amount equal to the proceeds of the sale of shares of Registrable Securities by such Holder in the offering which gave rise to the liability (net of underwriting commissions paid or action incurred by such Holder in connection with the registration, if any, and sale). This indemnity agreement will be in addition to any liability which Holder may otherwise have and shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any such person and shall survive the Termination Date and the transfer of Registrable Securities by such Holder as such expenses are incurredotherwise permitted hereby.
(c) If Promptly after any lawsuit, person entitled to indemnification under this Section 3.8 receives notice of any claim or proceeding is brought against the commencement of any action, the indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to the indemnification provisions of this Section 113.7, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingaction; provided, however, that the failure or delay to so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such the indemnified party otherwise hereunder unless and to the extent such failure or delay has prejudiced the rights of the indemnifying party and shall not, in any event, relieve it from any liability which it may have to the indemnified party other than under pursuant to the indemnification provisions of this Section 113.7. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party shall notify it has notified the indemnifying party of thereof in accordance with the commencement of such lawsuit, claim or proceedingterms hereof, the indemnifying party shall be entitled to participate in the defense of such lawsuitclaim, claim or proceedingor, andto the extent that it wishes, after jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party, upon written notice to the indemnified party of such assumption. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding action, (i) the indemnifying party shall not be liable to the indemnified party pursuant to the indemnification provisions hereof for any legal or other expenses subsequently incurred by the indemnified party in connection with counsel the defense thereof other than reasonable costs of its choice at its expenseinvestigation, (ii) the indemnifying party shall not be liable for the costs and expenses of any settlement of such claim or action unless such settlement was effected with the consent of the indemnifying party (which consent shall not be unreasonably withheld or delayed) and (iii) the indemnified party shall be obligated to cooperate with the indemnifying party in the investigation of such claim or action; provided, however, that such counsel shall be satisfactory to the any indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party hereunder shall have the right to employ separate counsel and to participate in the defense of such lawsuitclaim assumed by the indemnifying party, claim or proceedingbut the fees and expenses of such counsel shall be at the expense of such indemnified party unless (a) the employment of such counsel has been specifically authorized in writing by the indemnifying party, and (b) the indemnifying party shall bear have failed to assume the defense of such claim from the person entitled to indemnification hereunder and failed to employ counsel within a reasonable period following such assumption, or (c) in the reasonable feesjudgment of the indemnified party, costs and expenses based upon advice of such separate counsel (and shall pay such reasonable feesits counsel, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a material conflict of interest; (ii) the defendants in, or targets of, any interest may exist between such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and party with respect to such indemnified party shall have reasonably concluded that claims or there may be one or more material legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case case, if the indemnified party notifies the indemnifying party shall not have the right to direct the defense of such action on behalf of in writing that the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party elects to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not , the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not have the right to assume the defense of such claim on behalf of the indemnified party). Notwithstanding the foregoing, the Holders (together with their respective controlling persons and officers, directors and employees) shall have the right to employ at the expense of the Company only one separate counsel to represent such Holders (and their respective controlling persons and officers, directors and employees) who may be liable subject to liability arising out of any one action (or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances) in respect of which indemnity may be sought by such Holders against the Company pursuant to the indemnification provisions of this Section 3.7. If such defense is not assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement of any lawsuit, claim or proceeding effected made without its consent (which but such consent will not be unreasonably withheldwithheld or delayed), but if settled with . No indemnifying party will consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such consent, indemnified party of a release from all liability in respect to such claim or litigation. All fees and expenses to be paid by the indemnifying party agreeshereunder shall be paid a commercially reasonable time after they are billed to the indemnified party, subject to the provisions receipt of this Section 11, to indemnify a written undertaking from the indemnified party from to repay such fees and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim expenses if indemnity is not ultimately determined to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of available to such indemnified party under this Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim3.7.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for just and equitable contribution between the Company and such Holders in circumstances in which the indemnification provided for in provisions of this Section 11 3.7 are for any reason held to be unavailable from any indemnifying party insufficient or is insufficient inadequate to hold harmless a the indemnified party indemnified thereunderharmless, the Company, on the one hand, Company and Maxim, on the other hand, such Holders shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision Losses (including any investigation, legal and other fees and expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution actually received by from persons other than the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companysuch Holders) as incurred to which the Company and Maxim one or more of its directors or its officers who sign such Registration Statement or such Holders or any controlling person of any of them, or their respective officers, directors or employees may be become subject, under the Securities Act, under any other statute, at common law or otherwise, insofar as such Losses or actions in respect thereof arise out of, or are based upon, any untrue statement or alleged untrue statement of any material fact contained in such proportions as is appropriate Registration Statement or arise out of, or are based upon, the omission or alleged omission to reflect state therein a material fact required to be stated therein or necessary to make the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is statements therein not permitted by applicable law, misleading. Such contributions shall be in such proportions as are appropriate to reflect not only amounts that the relative benefits referred to above but also the relative fault portion of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions such Losses for which resulted in each such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, Holder shall be deemed to be in the same proportion as: (xresponsible under this Section 3.7(d) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether limited to the untrue or alleged portion of such Losses which are directly attributable to an untrue statement of a material fact or the omission or alleged an omission to state a material fact relates in said Registration Statement in reliance upon, and in conformity with, written information furnished to information supplied by the Company by or Maxim (which consists solely on behalf of any such Holder specifically for use therein, and exclusively the Company shall be responsible for the balance of such Losses; provided, however, that the liability of each such Holder to make such contribution shall be limited to an amount equal to the proceeds of the Dealer-Manager Informationsale of shares of Registrable Securities by such Holder in the offering which gives rise to the liability (net of underwriting commissions and disbursements) paid or incurred in connection with the registration, if any, and sale). As among themselves, such Holders agree to contribute to amounts payable by other such Holders in such manner as shall, to the parties’ relative intentextent permitted by law, knowledge, access give effect to information and opportunity to correct or prevent such statement or omissionthe provisions in Section 3.7(b). The Company and the Dealer-Manager such Holders agree that it would not be just and equitable if contribution their respective obligations to contribute pursuant to this Section 11(f) were to be determined by pro rata allocation (other than as set forth above) of the aggregate Losses by reference to the proceeds realized by such Holders in a sale pursuant to said Registration Statement or said Prospectus or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above set forth in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission3.7(d). Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution under this Section from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Stock Restriction and Registration Rights Agreement (Pinnacle Systems Inc), Asset Purchase Agreement (Pinnacle Systems Inc)
Indemnification and Contribution. (a) The Company agrees to shall indemnify and hold harmless the Placement Agents, their respective officers, employees, representatives and indemnify Maxim agents and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Placement Agents within the meaning of Section 20(athe Securities Act (collectively the "PLACEMENT AGENT INDEMNIFIED PARTIES" and each a "PLACEMENT AGENT INDEMNIFIED PARTY") of the Exchange Act) Maxim against any loss, claim, damage or liability, joint or several, or any of such affiliates from and against any and all (A) lossesaction in respect thereof, claims, damages and liabilities whatsoeverto which that Placement Agent Indemnified Party may become subject, under the Securities Act or otherwise (otherwise, insofar as incurred such loss, claim, damage, liability or suffered), arising action arises out of or is based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Base Prospectus, the Registration Statement, the Time of Sale Prospectus, if any, or the Prospectus Supplement or in any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Companyii) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in the Base Prospectus, the Registration Statement, the Time of Sale Prospectus, if any, or the Prospectus Supplement or in any such document amendment or supplement thereto a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offeringmisleading, (iii) actions taken or omitted to be taken by an indemnified party with any breach of the consent representations and warranties of the Company contained herein or in conformity with actions taken or omitted to be taken by the Company; (iv) any act or failure to act, or any alleged act or failure to act, by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be Placement Agent in connection with, or relating in any manner to, the Rights Offering, any of the other transactions contemplated thereby Stock or the performance of Maxim’s services to the Company with respect to the Rights Offeringoffering contemplated hereby, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred which is included as part of or referred to in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant action arising out of or based upon matters covered by clause (i), (ii) or (iii) above; (provided that the Company shall not be liable in the case of any matter covered by this clause (iv) to the preceding sentence which has been extent that it is determined in a final judgment by a court of competent jurisdiction to have that such loss, claim, damage, liability or action resulted directly from willful misconduct any such act or failure to act undertaken or omitted to be taken by such Placement Agent through its gross negligence or willful misconduct) and shall reimburse each Placement Agent Indemnified Party promptly upon demand for any legal or other expenses reasonably incurred by that Placement Agent Indemnified Party in connection with investigating or preparing to defend or defending against or appearing as a third party witness in connection with any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from the Base Prospectus, the Registration Statement, the Time of Sale Prospectus, if any, or the Prospectus Supplement or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by or on the part behalf of any indemnified partyPlacement Agent through the Representative specifically for use therein, which information the parties hereto agree is limited to the Placement Agents' Information (as defined in Section 16). This indemnity agreement is not exclusive and will be in addition to any liability, which the Company might otherwise have and shall not limit any rights or remedies which may otherwise be available at law or in equity to each Placement Agent Indemnified Party.
(b) The Dealer-Manager Each Placement Agent, severally and not jointly, shall indemnify and hold harmless the Company, Company its officers, directors employees, representatives and employeesagents, each of its directors and each Personperson, if any, who controls the Company within the meaning of the Securities Act, from Act (collectively the "COMPANY INDEMNIFIED PARTIES" and each a "COMPANY INDEMNIFIED PARTY") against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person Indemnified Parties may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, of or is based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Base Prospectus, the Registration Statement, the Time of Sale Prospectus, if any, or the Prospectus Supplement or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; supplement thereto or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by or on behalf of that Placement Agent through the Representative specifically for use therein, and shall reimburse the Company and any such director, officer or controlling Person Indemnified Parties for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person parties in connection with investigating or defending or preparing to defend or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability or action as such expenses are incurred; provided that the parties hereto hereby agree that such written information provided by the Placement Agents consist solely of the Placement Agents Information. This indemnity agreement is not exclusive and will be in addition to any liability, which each of the Placement Agents and the Purchasers might otherwise have and shall not limit any rights or remedies which may otherwise be available at law or in equity to the Company Indemnified Parties. Notwithstanding the provisions of this Section 7(b), in no event shall any indemnity by any Placement Agent under this Section 7(b) exceed the total compensation received by such Placement Agent in accordance with Section 1(e).
(c) If Promptly after receipt by an indemnified party under this Section 7 of notice of any lawsuit, claim or proceeding is brought against the commencement of any action, the indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 117, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 7 except to the extent that it has been materially prejudiced in any material respect by such failure; and, provided, further, that the failure and in any event to notify the indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such an indemnified party otherwise than under this Section 117. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding action, the indemnifying party shall not be liable to the indemnified party under this Section 7 for any legal or other expenses subsequently incurred by the indemnified party in connection with counsel the defense thereof other than reasonable costs of its choice at its expenseinvestigation; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense of such lawsuit, claim or proceeding, and thereof but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay be at the expense of such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: indemnified party unless (i) the use of counsel chosen employment thereof has been specifically authorized by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; in writing, (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by such counsel that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (and in which case the indemnifying party shall not have the right to direct the defense reasonable judgment of such action on behalf of the counsel it is advisable for such indemnified party); party to employ separate counsel or (iii) the indemnifying party shall not have employed has failed to assume the defense of such action in accordance with the terms hereof and employ counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgmentwhich case, to represent if such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) notifies the indemnifying party shall authorize such indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not , the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such indemnified parties, which firm shall be designated in writing by the Representative, if the indemnified parties under this Section 7 consist of any Placement Agent Indemnified Party, or by the Company if the indemnified parties under this Section 7 consist of any Company Indemnified Parties. Each indemnified party, as a condition of the indemnity agreements contained in Sections 7(a) and 7(b) shall use all reasonable efforts to cooperate with the indemnifying party in the defense of any such action or claim. Subject to the provisions of Section 7(d) below, no indemnifying party shall be liable for any settlement settlement, compromise or consent to the entry of judgment in connection with any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such consentaction (other than a judgment entered with the consent of such indemnified party), the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees to notify Maxim promptly, settlement or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximjudgment.
(d) The amount paid or payable by If at any time an indemnified party as a result shall have requested that an indemnifying party reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the lossesnature contemplated by this Section 7 effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the request for reimbursement, claims, damages, liabilities or expenses referred (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to in the immediately preceding paragraph such settlement being entered into and (iii) such indemnifying party shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by not have reimbursed such indemnified party in connection accordance with investigating, preparing such request prior to defend or defending any the date of such action or claimsettlement.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held to be 7 is unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party under Section 7(a) or 7(b), then each indemnifying party shall, in lieu of indemnifying such indemnified thereunderparty, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated amount paid or payable by such indemnification provision indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyi) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is shall be appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Placement Agents on the other hand, from the Rights Offering or, offering of the Stock or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company on the one hand, hand and Maxim, the Placement Agents on the other hand, in connection with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damagesdamage or liability, liabilities or expensesaction in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company on the one hand, hand and Maxim, the Placement Agents on the other hand, with respect to such offering shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Stock purchased under this Agreement (before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total compensation received by the Dealer-ManagerPlacement Agents with respect to the Stock purchased under this Agreement. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or Maxim (which consists solely and exclusively the Placement Agents on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission; provided that the parties hereto agree that the written information furnished to the Company by the Placement Agents for use in the Prospectus Supplement consists solely of the Placement Agents' Information. The Company and the Dealer-Manager Placement Agents agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f7(e) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Sectionherein. The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 11 7(e) shall be deemed to include include, for purposes of this Section 7(e), any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such action or claim. Notwithstanding the provisions of this Section 7(e), the Placement Agents shall not be required to contribute any amount in excess of the total compensation received by such Placement Agent in accordance with Section 1(e) less the amount of any damages which such Placement Agent has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of .
(f) The Placement Agents' obligations to contribute as provided in this Section 11, 7(f) are several in proportion to the total compensation received by each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Placement Agents in accordance with Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i1(e) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwisejoint.
Appears in 2 contracts
Sources: Placement Agent Agreement (Halozyme Therapeutics Inc), Placement Agent Agreement (Halozyme Therapeutics Inc)
Indemnification and Contribution. (a) The Company agrees to shall indemnify and hold harmless the Underwriters, its affiliates, directors, officers and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange 1933 Act or Section 20 of the 1934 Act) Maxim or any of such affiliates , from and against any and all (A) losses, damages, claims, damages and liabilities whatsoeverexpenses or liabilities, joint or several, to which the Underwriters may become subject, under the Securities 1933 Act or otherwise otherwise, insofar as such losses, damages, claims, expenses or liabilities (as incurred or suffered), arising actions or claims in respect thereof) arise out of or are based upon: (i) any upon an untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement or any amendment or supplement thereto, in or any other solicitation material used by Prospectus Supplement, Preliminary Prospectus, Pricing Disclosure Package, Issuer Free Writing Prospectus or the Company or authorized by it for use in connection with the Rights Offering, Prospectus or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished in writing by the Company) specifically for the purpose of qualifying , filed in any state or other jurisdiction in order to qualify any or all of the Rights or the Rights Shares or Rights Warrants Notes under the securities laws of any state or other jurisdiction thereof (any such application, document or information being hereinafter called a the “Blue Sky Application”) ), or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary to make the statements therein not misleading or an untrue statement or alleged untrue statement of a material fact contained in order any Prospectus Supplement, Preliminary Prospectus, Pricing Disclosure Package, Issuer Free Writing Prospectus, the Prospectus or any other prospectus relating to the Notes or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and will reimburse each Underwriter for any legal or other expenses incurred by such Underwriter in connection with investigating, preparing, pursuing or defending against any such loss, damage, liability or action or claim, including, without limitation, any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of counsel to the indemnified party, as such expenses are incurred (including such losses, damages, liabilities or expenses to the extent of the aggregate amount paid in settlement of any such action or claim, provided that (subject to Section 7(d) hereof) any such settlement is effected with the written consent of the Company); provided, however, that the Company shall not be liable in any such case to the extent, but only to the extent, that any such loss, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus Supplement, Preliminary Prospectus, Pricing Disclosure Package, Issuer Free Writing Prospectus, the Registration Statement, the Prospectus or any other than statements prospectus relating to the Notes, or omissions made any such amendment or supplement, in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, written information relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services Underwriters furnished to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. HoweverRepresentatives, expressly for use in the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified partypreparation thereof.
(b) The Dealer-Manager shall Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless the Company, its officersdirectors, directors and employees, each of its directors officers who signed the Registration Statement and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the 1934 Act, from and against any lossand all losses, claimdamages, damage claims, expenses or liability, joint or several, or any action in respect thereof, liabilities to which the Company or any such director, officer or controlling Person may become subject, under the Securities 1933 Act or otherwise, insofar as such losslosses, claimdamages, damageclaims, liability expenses or action arises liabilities (or actions or claims in respect thereof) arise out of, of or is are based upon: (i) any upon an untrue statement or alleged untrue statement of a material fact contained (A) in any Offer DocumentsProspectus Supplement, Preliminary Prospectus, Pricing Disclosure Package, Issuer Free Writing Prospectus, the Registration Statement, the Prospectus or any other prospectus relating to the Notes, or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; , or (ii) arise out of or are based upon the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in any Prospectus Supplement, Preliminary Prospectus, Pricing Disclosure Package, Issuer Free Writing Prospectus, the Registration Statement, the Prospectus or any other prospectus relating to the Notes, or any such amendment or supplement, or any Blue Sky Application, in reliance upon and in conformity with written information relating to the Dealer-Manager InformationUnderwriters furnished to the Company by the Representatives, expressly for use in the preparation thereof, and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability action or action claim as such expenses are incurredincurred (including such losses, damages, liabilities or expenses to the extent of the aggregate amount paid in settlement of any such action or claim, provided that (subject to Section 7(d) hereof) any such settlement is effected with the written consent of the Underwriters.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party in respect under Section 7(a) or 7(b) hereof of which indemnification may be sought against notice of the indemnifying party pursuant to this Section 11commencement of any action, such indemnified party shall promptly notify the shall, if a claim in respect thereof is to be made against an indemnifying party under Section 7(a) or 7(b) hereof, notify each such indemnifying party in writing of the commencement of such lawsuitthereof, claim or proceeding; provided, however, that but the failure so to notify the such indemnifying party shall not relieve the such indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party or from any other obligation or liability which that it may have to any such indemnified party otherwise than under this Section 117(a) or 7(b) hereof. In case any such lawsuit, claim or proceeding action shall be brought against any such indemnified party and such indemnified party it shall notify the each indemnifying party of the commencement of thereof, each such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in therein and, to the extent that it shall wish, jointly with any other indemnifying party under Section 7(a) or 7(b) hereof similarly notified, to assume the defense thereof, with counsel satisfactory to such lawsuit, claim or proceedingindemnified party, and, after written notice from the such indemnifying party to such indemnified party, party of its election so to assume the defense of thereof, such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that indemnifying party shall not be liable to such counsel shall be satisfactory to the indemnified party under Section 7(a) or 7(b) hereof for any legal expenses of other counsel or any other expenses, in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding, such investigation. The indemnified party shall have the right to employ separate its own counsel and to participate in any such action, but the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay be at the expense of such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: indemnified party unless (i) the use employment of counsel chosen by such indemnified party at the expense of the indemnifying party has been authorized by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; party, (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by such counsel that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense, or certain aspects of the defense, of such action (in which case the indemnifying party shall not have the right to direct the defense of such action with respect to those matters or aspects of the defense on which a conflict exists or may exist on behalf of the indemnified party); ) or (iii) the indemnifying party shall not in fact have employed counsel reasonably satisfactory to such indemnified partyparty to assume the defense of such action, in any of which events such fees and expenses to the exercise of such indemnified party’s reasonable judgmentextent applicable shall be borne, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuitand shall be paid as incurred, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of by the indemnifying party. The foregoing indemnification commitments shall apply whether or not the If at any time such indemnified party is a formal party to any shall have requested such lawsuit, claim or proceeding. The indemnifying party under Section 7(a) or 7(b) hereof to reimburse such indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall not be liable for any settlement of any lawsuit, claim the nature contemplated by Section 7(a) or proceeding 7(b) hereof effected without its written consent if (which consent will i) such settlement is entered into more than 45 days after receipt by such indemnifying party of such request for reimbursement, (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 be unreasonably withheld), but if settled have reimbursed such indemnified party in accordance with such consent, the indemnifying party agrees, subject request for reimbursement prior to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason date of such settlement. The Company agrees to notify Maxim promptlyNo such indemnifying party shall, without the written consent of such indemnified party, effect the settlement or compromise of, or cause Maxim consent to be notified promptly, of the assertion entry of any lawsuit, claim or proceeding against the Companyjudgment with respect to, any pending or threatened action or claim in respect of its officers which indemnification or directors contribution may be sought hereunder (whether or any Person who controls any not such indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (A) includes an unconditional release of the foregoing within the meaning of Section 20(a) of the Exchange Act, such indemnified party from all liability arising out of such action or relating claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any such indemnified party. In no event shall such indemnifying parties be liable for the Rights Offering. The Company further agrees that fees and expenses of more than one counsel, including any settlement of a lawsuitlocal counsel, claim for all such indemnified parties in connection with any one action or proceeding against it separate but similar or related actions in the same jurisdiction arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim same general allegations or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximcircumstances.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for 7 is unavailable to or insufficient to indemnify or hold harmless an indemnified party under Section 7(a) or 7(b) hereof in respect of any reason held losses, damages, claims, expenses or liabilities (or actions or claims in respect thereof) referred to be unavailable from any therein, then each indemnifying party under Section 7(a) or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, 7(b) hereof shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, damages, claims, damages, expenses or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred or actions or claims in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maximthe Underwriters, on the other hand, from the Rights Offering oroffering of the Notes. If, if such however, the allocation provided by the immediately preceding sentence is not permitted by applicable lawlaw or if the indemnified party failed to give the notice required under Section 7(c) hereof and such indemnifying party was prejudiced in a material respect by such failure, then each such indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault fault, as applicable, of the Company, on the one hand, and Maximthe Underwriters, on the other hand, in connection with the statements or omissions which that resulted in such losses, damages, claims, damages, expenses or liabilities (or expensesactions or claims in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by by, as applicable, the Company, on the one hand, and Maximthe Underwriters, on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering such offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-ManagerUnderwriters. The relative fault of each fault, as applicable, of the Company, on the one hand, and Maximthe Underwriters, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, on the one hand, or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f7(d) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this SectionSection 7(d). The aggregate amount paid or payable by such an indemnifying party as a result of the losses, liabilitiesdamages, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions or claims in respect thereof) referred to above in this Section 11 7(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationsuch action or claim. Notwithstanding the provisions of this Section 7(d), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the Notes purchased by it and distributed to the public were offered to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of The Underwriters’ obligations in this Section 117(d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 7 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager officer, director, employee, agent or other representative and to each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act 1934 Act; and the obligations of the Underwriters under this Section 7 shall be in addition to any liability that the respective Underwriter may otherwise have and shall extend, upon the same rights terms and conditions, to contribution as such Dealer-Manager, each officer and director of the Company who signed the Registration Statement and to each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act.
(f) The parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the negotiations regarding the provisions hereof, each officer including, without limitation, the provisions of this Section 7, and are fully informed regarding such provisions. They further acknowledge that the provisions of this Section 7 fairly allocate the risks in light of the ability of the parties to investigate the Company who shall have signed and its business in order to assure that adequate disclosure is made in the Registration Statement Statement, any Prospectus Supplement, Preliminary Prospectus, Pricing Disclosure Package, Issuer Free Writing Prospectus, the Prospectus, and each director of any supplement or amendment thereof, as required by the Company shall have the same rights to contribution as the Company, subject 1933 Act.
(g) The remedies provided for in each case to clauses (i) this Section 7 are not exclusive and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the limit any rights or remedies which may otherwise be available to any indemnified party at law or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwisein equity.
Appears in 2 contracts
Sources: Underwriting Agreement (Healthcare Realty Trust Inc), Underwriting Agreement (Healthcare Realty Trust Inc)
Indemnification and Contribution. (a) The Company agrees to Transaction Entities jointly and severally shall indemnify and hold harmless each Underwriter, its officers and indemnify Maxim employees and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of the Exchange Securities Act) Maxim or any of such affiliates , from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and all (A) lossessales of Securities), claimsto which such Underwriter or each such officer, damages and liabilities whatsoeveremployee or controlling person may become subject, under the Securities Act or otherwise (otherwise, insofar as incurred such loss, claim, damage, liability or suffered)action arises out of, arising out of or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Offer Documents Registration Statement or the Prospectus or in any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Companyii) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, any material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading (with respect to the Prospectus, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken any act or omitted failure to be taken act or any alleged act or failure to act by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be Underwriter in connection with, or relating in any manner to, the Rights Offering, any of the other transactions contemplated thereby Securities or the performance of Maxim’s services to the Company with respect to the Rights Offeringoffering contemplated hereby, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred which is included as part of or referred to in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant action arising out of or based upon matters covered by clause (i) or (ii) above (provided that the Company shall not be liable under this clause (iii) to the preceding sentence which has been extent that it is determined in a final judgment by a court of competent jurisdiction to have that such loss, claim, damage, liability or action resulted directly from willful misconduct any such acts or failures to act undertaken or omitted to be taken by such Underwriter through its gross negligence or willful misconduct), and shall reimburse each Underwriter and each such officer, employee or controlling person for any legal or other expenses reasonably incurred by such Underwriter or such officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Transaction Entities shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any such amendment or supplement, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Transaction Entities by or on the part behalf of any indemnified partyUnderwriter specifically for inclusion therein. The foregoing indemnity agreement is in addition to any liability which the Transaction Entities may otherwise have to any Underwriter or to any officer, employee or controlling person of that Underwriter.
(b) The Dealer-Manager Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Companyeach Transaction Entity, its officers, directors officers and employees, each of its directors trustees, and each Personperson, if any, who controls the Company each Transaction Entity within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company each Transaction Entity or any such directortrustee, officer or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer DocumentsPreliminary Prospectus, the Registration Statement or the Prospectus or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer DocumentsPreliminary Prospectus, the Registration Statement or the Prospectus, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, supplement thereto any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Dealer-Manager InformationTransaction Entities by or on behalf of that Underwriter specifically for inclusion therein, and shall reimburse the Company each Transaction Entity and any such directortrustee, officer or controlling Person person for any legal or other expenses reasonably incurred by the Company each Transaction Entity or any such directortrustee, officer or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to each Transaction Entity or any such trustee, officer, employee or controlling person.
(c) If Promptly after receipt by an indemnified party under subsection (a) or (b) of this Section 8 of notice of any lawsuit, claim or proceeding is brought against the commencement of any action, the indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 8 except to the extent that it has been materially prejudiced in any material respect by such failure and in any event and, provided further, that the failure to notify the indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such an indemnified party otherwise than under subsection (a) or (b) of this Section 118. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding action, the indemnifying party shall not be liable to the indemnified party under such subsection for any legal or other expenses subsequently incurred by the indemnified party in connection with counsel the defense thereof other than reasonable costs of its choice at its expenseinvestigation; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate no more than one firm of its own counsel and (in addition to participate local counsel), with such counsel, in the defense case of such lawsuitthe Underwriters, to represent jointly the Underwriters and their respective officers, employees and controlling persons who may be subject to liability arising out of any claim or proceedingin respect of which indemnity may be sought by the Underwriters against the Transaction Entities under this Section 8 if, in the reasonable judgment of the Underwriters, it is advisable for the Underwriters and those officers, employees and controlling persons to be jointly represented by separate counsel, and in that event the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: be paid by the Transaction Entities. No indemnifying party shall (i) without the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf prior written consent of the indemnified party); parties (iii) the indemnifying party which consent shall not have employed counsel satisfactory be unreasonably withheld), settle or compromise or consent to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution entry of any such lawsuitjudgment with respect to any pending or threatened claim, claim action, suit or proceeding; proceeding in respect of which indemnification or contribution may be sought hereunder (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. The indemnifying party shall not , or (ii) be liable for any settlement of any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees to notify Maxim promptly, settlement or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximjudgment.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 8 shall for any reason held to be unavailable from any indemnifying party to or is insufficient to hold harmless a an indemnified party under Section 8(a) or 10(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified thereunderparty, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated amount paid or payable by such indemnification provision indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyi) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is shall be appropriate to reflect the relative benefits received by the Company, Transaction Entities on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering of the Securities or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the CompanyTransaction Entities, on the one hand, and Maximthe Underwriters, on the other hand, in connection with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damagesdamage or liability, liabilities or expensesaction in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the CompanyTransaction Entities, on the one hand, and Maximthe Underwriters, on the other hand, with respect to such offering shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Securities purchased under this Agreement (before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the CompanyTransaction Entities, on the one hand, and Maximthe total underwriting discounts and commissions received by the Underwriters with respect to the Securities purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the Securities under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Transaction Entities or Maxim (which consists solely and exclusively the Underwriters, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Transaction Entities and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Sectionherein. The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 11 shall be deemed to include include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such action or claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public was offered to the public exceeds the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within .
(e) The Underwriters severally confirm that the meaning of Section 15 statements on pages S-15 and S-16 of the Securities Act or Section 20 prospectus supplement to the Prospectus dated February 24, 2005 in the fourth, seventh, eighth and ninth paragraphs of the Exchange Act shall have the same rights to contribution as such Dealer-Manager"Underwriting" section, are correct and each PersonTransaction Entity acknowledges that these statements constitute the only information concerning such Underwriters furnished in writing to the Transaction Entities by or on behalf of the Underwriters specifically for inclusion in the Registration Statement, the Preliminary Prospectus, if any, who controls and the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseProspectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Liberty Property Limited Partnership), Underwriting Agreement (Liberty Property Limited Partnership)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless and indemnify Maxim and its the Manager, the directors, officers, employees, affiliates and any officer, director, employee or agent agents of Maxim or any such affiliates the Manager and any Person controlling (each person who controls the Manager within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, Registration Statement as originally filed or in any blue sky application amendment thereof, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact included in the Basic Prospectus, the Prospectus, or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (includingagrees to reimburse each such indemnified party, but not limited toas incurred, for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of them in connection with investigating or defending any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out ofaction; provided, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentshowever, or that the Company will not be liable in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action Information (as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11defined below). In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent This indemnity agreement will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties liability that the Company may have under common law otherwise have. As used in this Agreement, with respect to the Manager, “Manager Information” shall mean written information relating to the Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing indemnity; it being understood and agreed upon that the only such information furnished by the Manager consists of the following information in the Prospectus furnished by or otherwise but shall supersede, amend and restate, retroactively, on behalf of the rights to indemnification, reimbursement and contribution provided for Manager: the information contained in the first sentence of the ninth paragraph under the Engagement Lettercaption “Plan of Distribution”.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Equity Distribution Agreement (Clean Energy Fuels Corp.), Equity Distribution Agreement (Clean Energy Fuels Corp.)
Indemnification and Contribution. (a) The Company agrees to will indemnify and hold harmless and indemnify Maxim each Underwriter, its partners, members, directors, officers and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates from and , against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Company Registration Statement, any Company Statutory Prospectus, the Company Prospectus, or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights OfferingIssuer Free Writing Prospectus, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in each connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon (i) any statement in or omission or alleged omission from the Guarantor’s Information or (ii) an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company or the Guarantor by or on behalf of any Underwriter through the Representatives, if any, specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in the Terms Agreement. It is understood and agreed that the Guarantor’s Information consists only of the information set forth on Schedule A hereto (such information is referred to herein as the “Guarantor’s Information”).
(b) The Guarantor will indemnify and hold harmless each Underwriter, its partners, members, directors, officers and its affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Guarantor Registration Statement, any Guarantor Statutory Prospectus, the Guarantor Prospectus, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Guarantor will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon (i) any statement in or omission or alleged omission from the Company’s Information or (ii) an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Guarantor by or on behalf of any Underwriter through the Representatives, if any, specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in the Terms Agreement. It is understood and agreed that the Company’s Information consists only of the information set forth on Schedule B hereto (such information is referred to herein as the “Company’s Information”).
(c) Each Underwriter will severally and not jointly indemnify and hold harmless the Company, the Guarantor, their respective managing directors, directors, officers who signed the Company Registration Statement or Guarantor Registration Statement, affiliates and each person, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities to which the Company or the Guarantor may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Company Registration Statement, Guarantor Registration Statement, any Company Statutory Prospectus, any Guarantor Statutory Prospectus , the Company Prospectus, the Guarantor Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany or the Guarantor by or on behalf of such Underwriter through the Representatives, if any, specifically for use therein, and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person the Guarantor in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in the Terms Agreement.
(cd) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under subsection (a), such indemnified party shall promptly (b) or (c) above, notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which that it may have under this Section 11 subsection (a), (b) or (c) above except to the extent that it has been materially prejudiced in any material respect (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure and in any event to notify the indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which that it may have to such an indemnified party otherwise than under this Section 11subsection (a), (b) or (c) above. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, therein and, after written notice from to the extent that it may wish, jointly with any other indemnifying party to such indemnified partysimilarly notified, to assume the defense of such lawsuitthereof, claim or proceeding with counsel satisfactory to such indemnified party (who shall not, except with the consent of its choice at its expensethe indemnified party, be counsel to the indemnifying party); provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) if the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party, the indemnified party (in which case the indemnifying party or parties shall not have the right to direct select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of the indemnified partyparty or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for expenses of more than one separate counsel (together with local counsel); , approved by the indemnifying party (iiithe Representatives in the case of Sections 7(c), representing the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of commencement of the institution action, in each of any such lawsuit, claim or proceeding; or (iv) which cases the indemnifying party fee and expenses of counsel shall authorize such indemnified party to employ separate counsel be at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not No indemnifying party shall, without the prior written consent of the indemnified party is a formal party to any such lawsuitparty, claim or proceeding. The indemnifying party shall not be liable for effect any settlement of any lawsuit, claim pending or proceeding effected without its consent threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (which consent will not be unreasonably withheld), but if settled with i) includes an unconditional release of such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against all liability on any loss, damage or liability by reason claims that are the subject matter of such settlement. The Company agrees to notify Maxim promptlyaction and (ii) does not include a statement as to, or cause Maxim an admission of, fault, culpability or a failure to be notified promptly, act by or on behalf of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(de) The If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to includesubsection (a), subject to the limitations set forth above, any legal (b) or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(ec) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
above (fi) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company or the Guarantor on the one hand, as applicable, and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering of the Offered Securities or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company or the Guarantor on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company or the Guarantor on the one hand, as applicable, and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-ManagerUnderwriters from the Company under this Agreement. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Guarantor on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined amount paid by pro rata allocation or by any other method of allocation which does not take account an indemnified party as a result of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this subsection (e). Notwithstanding the provisions of this subsection (e), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The Underwriters’ obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint.
(f) The several obligations of the Company and the Guarantor under this Section 11shall be in addition to any liability which the Company or the Guarantor may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager person, if any, who controls any Underwriter within the meaning of Section 15 the Act; and the obligations of the Securities Act or Underwriters under this Section 20 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each managing director and director of the Exchange Act shall have Company and the same rights Guarantor, to contribution as such Dealer-Managereach officer of the Company and the Guarantor who has signed the Company Registration Statement or the Guarantor Registration Statement, to their affiliates, and to each Personperson, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Terms Agreement (Bottling Group LLC), Terms Agreement (Pepsico Inc)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by registration statement for the Company or authorized by it for use in connection with registration of the Rights Offering, Securities as originally filed or in any blue sky application amendment thereof, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but or (ii) any untrue statement or alleged untrue statement or a material fact contained in any Preliminary Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and shall reimburse each person who controls the Company and any such directorwithin the meaning of either the Act or the Exchange Act, officer or controlling Person for any legal or other expenses reasonably incurred by to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that (i) the statements set forth in the last paragraph of the cover page regarding delivery of the Securities and, under the heading “Underwriting”, (ii) the list of Underwriters and their respective participation in the sale of the Securities, (iii) the sentences related to concessions and reallowances and (iv) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Prospectus (or any such director, officer supplement thereto) constitute the only information furnished in writing by or controlling Person on behalf of the several Underwriters for inclusion in connection with investigating any Preliminary Prospectus or defending the Prospectus (or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredsupplement thereto).
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in such lawsuit, claim or proceeding, and, after written notice from any action for which indemnification is sought (in which case the indemnifying party to such shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party, to assume the defense of such lawsuit, claim party or proceeding with counsel of its choice at its expenseparties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party’s election of to appoint counsel to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the actual or potential defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); , (iii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; action or (iv) the indemnifying party shall authorize such the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement action) unless such settlement, compromise or consent includes an unconditional release of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the each indemnified party from and against any loss, damage or all liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of such claim, action, suit or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximproceeding.
(d) The amount paid In the event that the indemnity provided in paragraph (a) or payable by an indemnified party as a result (b) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held 8 is unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderfor any reason, the Company, on Company and the one hand, and Maxim, on the other hand, shall Underwriters severally agree to contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and or other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit with investigating or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companydefending same) as incurred (collectively “Losses”) to which the Company and Maxim one or more of the Underwriters may be subject, subject in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, by the Underwriters on the other hand, from the Rights Offering oroffering of the Securities; provided, if however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is not permitted by applicable lawunavailable for any reason, the Company and the Underwriters severally shall contribute in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, of the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company, on the one hand, and Maxim, on the other hand, Company shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually it, and benefits received by the Dealer-Manager. The relative fault of Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Company, on the one hand, and Maxim, on the other hand, Prospectus. Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied provided by the Company on the one hand or Maxim (which consists solely and exclusively the Underwriters on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionabove. Notwithstanding the provisions of this Section 11: paragraph (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 118, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee, Affiliate and agent of an Underwriter shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses the applicable terms and conditions of this paragraph (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwised).
Appears in 2 contracts
Sources: Underwriting Agreement (Spansion Inc.), Underwriting Agreement (Spansion Inc.)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) (i) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by registration statement for the Company or authorized by it for use in connection with registration of the Rights Offering, Securities as originally filed or in any blue sky application amendment thereof, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the an omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but or (ii) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact, in light of the circumstances in which it was made, or an omission or alleged omission to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in any Preliminary Prospectus, the Final Prospectus, or in any amendment or supplement thereto, or in any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by or on behalf of any Underwriter through the Representatives specifically for inclusion therein.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers, and shall reimburse each person who controls the Company and any such directorwithin the meaning of either the Act or the Exchange Act, officer or controlling Person for any legal or other expenses reasonably incurred by to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in Section 8(a) above. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that (i) the last sentence set forth on the cover page regarding delivery of the Securities and (ii) under the heading “Underwriting,” (A) the sentences related to concessions and reallowances and (B) the paragraphs related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredIssuer Free Writing Prospectus.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in such lawsuit, claim or proceeding, and, after written notice from any action for which indemnification is sought (in which case the indemnifying party to such shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party, to assume the defense of such lawsuit, claim party or proceeding with counsel of its choice at its expenseparties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party’s election of to appoint counsel to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the actual or potential defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); , (iii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; action or (iv) the indemnifying party shall authorize such the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement action) unless such settlement, compromise or consent includes an unconditional release of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the each indemnified party from and against any loss, damage or all liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuitsuch claim, claim action, suit or proceeding against it arising out and does not include a statement as to, or admission of, fault, culpability or failure to act on behalf of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid In the event that the indemnity provided in paragraph (a) or payable by an indemnified party as a result (b) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 8 is for any reason held to be unavailable from any indemnifying unenforceable by an indemnified party or is insufficient to hold harmless a party indemnified thereunderunder paragraph (a) or (b) of this Section 8, although applicable in accordance with its terms (including the requirements of Section 8(c) above), the Company, on Company and the one hand, and Maxim, on the other hand, shall Underwriters severally agree to contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and or other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit with investigating or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companydefending same) as incurred (collectively “Losses”) to which the Company and Maxim one or more of the Underwriters may be subject, subject in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, by the Underwriters on the other hand, from the Rights Offering oroffering of the Securities; provided, if however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder; provided, further, that each Underwriter’s obligation to contribute to Losses hereunder shall be several and not joint. If the allocation provided by the immediately preceding sentence is not permitted by applicable lawunavailable for any reason, the Company and the Underwriters severally shall contribute in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, of the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company, on the one hand, and Maxim, on the other hand, Company shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually it, and benefits received by the Dealer-Manager. The relative fault of Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Company, on the one hand, and Maxim, on the other hand, Final Prospectus. Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied provided by the Company on the one hand or Maxim (which consists solely and exclusively the Underwriters on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionabove. Notwithstanding the provisions of this Section 11: paragraph (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 118, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses the applicable terms and conditions of this paragraph (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwised).
Appears in 2 contracts
Sources: Underwriting Agreement (Peco Energy Co), Underwriting Agreement (Peco Energy Co)
Indemnification and Contribution. (a) The Company agrees to will indemnify and hold harmless each Agent, its affiliates, its selling agents, its and indemnify Maxim and its their directors, officers, agents, affiliates and employees, and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Agent within the meaning of Section 20(a) 15 of the Act or Section 20 of the Exchange Act, (1) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such parties may become subject, under the Securities Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) any upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Offer Documents Registration Statement, the Prospectus, the Prospectus as amended or supplemented, or any amendment or supplement thereto, in any other solicitation material used by Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Company or authorized by it for use in connection with the Rights OfferingAct, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse each such party for any legal or other expenses reasonably incurred by it in each connection with investigating, preparing or defending any such action or claim as such expenses are incurred and (2) against any losses, claims, damages or liabilities, to which such parties may become subject to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 8(d) below) any such settlement is effected with the written consent of the Company; provided, however, that the Company shall not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus, the Prospectus as amended or supplemented, or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company, its directors and officers, and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which such parties may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus, the Prospectus as amended or supplemented or any other prospectus relating to the Securities, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus, the Prospectus as amended or supplemented or any other prospectus relating to the Securities, or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information furnished to the Company by such Agent expressly for use therein; and any will reimburse such director, officer or controlling Person parties for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person them in connection with investigating investigating, preparing or defending or preparing to defend against any such loss, claim, damage, liability action or action claim as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under subsection (a) or (b) of this Section 8 of notice of the commencement of any action, such indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure omission so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 11such subsection. In case any such lawsuit, claim or proceeding action shall be brought against any indemnified party and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such lawsuitindemnified party (who shall not, claim or proceedingexcept with the consent of the indemnified party, be counsel to the indemnifying party), and, after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense of such lawsuitthereof, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right be liable to direct the defense such indemnified party under such subsection for any legal expenses of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed other counsel satisfactory to or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the exercise defense thereof other than reasonable costs of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) investigation. In no event shall the indemnifying party shall authorize such be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all indemnified party to employ parties in connection with any one action or separate counsel at but similar or related actions in the expense same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the written consent of the indemnified party. The foregoing , effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification commitments shall apply or contribution may be sought under this Section 8 (whether or not the indemnified party is a formal an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any such lawsuit, claim or proceeding. The indemnified party.
(d) 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 not be liable for any settlement of any lawsuit, claim or proceeding the nature contemplated by Section 8(a)(2) hereof effected without its written consent if (which consent will not be unreasonably withheld), but if settled with i) such consent, the settlement is entered into more than 45 days after receipt by such indemnifying party agreesof the aforesaid request, subject to (ii) such indemnifying party shall have received notice of the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason terms of such settlement. The Company agrees settlement at least 30 days prior to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(asuch settlement being entered into and (iii) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering such indemnifying party shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by not have reimbursed such indemnified party in connection accordance with investigating, preparing such request prior to defend or defending any the date of such action or claimsettlement.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held to be 8 is unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderunder subsection (a) or (b) of this Section 8 in respect of any losses, the Companyclaims, on the one handdamages or liabilities (or actions in respect thereof) referred to therein, and Maxim, on the other hand, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred or actions in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, each Agent on the other hand, from the Rights Offering oroffering of the Securities to which such loss, if such claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable lawlaw or if the indemnified party failed to give the notice required under subsection (c) of this Section 8, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, each Agent on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Company on the one hand, hand and Maxim, each Agent on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering sale of Securities (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total commissions or discounts received by such Agent from the Dealer-ManagerCompany in respect thereof. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or Maxim (which consists solely and exclusively of by any Agent on the Dealer-Manager Information) other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager each Agent agree that it would not be just and equitable if contribution pursuant to this Section 11(fsubsection (e) were determined by pro rata allocation (even if all Agents were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Sectionsubsection (e). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions in respect thereof) referred to above in this Section 11 subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationsuch action or claim. Notwithstanding the provisions of this subsection (e), an Agent shall not be required to contribute any amount in excess of the amount by which the total public offering price at which the Securities purchased by or through it were sold exceeds the amount of any investigation or proceeding damages which such Agent has otherwise been required to pay by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 118(e), each Person controlling a Dealer-Manager person, if any, who controls an Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each Agent’s affiliates shall have the same rights to contribution as such Agent, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company. The obligations of each of the Agents under this subsection (e) to contribute are several in proportion to the respective purchases made by or through it to which such Dealer-Managerloss, claim, damage or liability (or action in respect thereof) relates and are not joint.
(f) The obligations of the Company under this Section 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Agent within the meaning of the Act and each Personbroker-dealer affiliate of any Agent; and the obligations of each Agent under this Section 8 shall be in addition to any liability which such Agent may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Distribution Agreement (Nomura Holdings Inc), Distribution Agreement (Nomura Holdings Inc)
Indemnification and Contribution. For purposes of this Section 7, “Prospectus Supplement” shall include any prospectus supplement relating to the Units filed with the Commission pursuant to Rule 424(b) of the Rules.
(a) The Company agrees to Partnership will indemnify and hold harmless and indemnify Maxim the Manager and its respective affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls the Manager within the meaning of Section 20(a) 15 of the Act or Section 20 of the Exchange Act, as follows:
(i) Maxim or any of such affiliates from and against any and all loss, liability, claim, damage and expense whatsoever (including the reasonable cost of investigation), to which the Manager or any such person may become subject, (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement (or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering), or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement to such documents), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, or (B) resulting from the use of any issuer free writing prospectus (as defined in Rule 433 of the Rules) or prospectus, other than statements the Prospectus, relating to the Units, whether or omissions made not filed by the Partnership or on its behalf; provided, however, that this indemnity does not apply to the extent any such issuer free writing prospectus or prospectus is also used by the Manager;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 7(d) below) any such settlement is effected with the written consent of the Partnership; and
(iii) against any and all expense whatsoever, as incurred (including, subject to Section 7(c) hereof, the fees and disbursements of counsel chosen by the Manager), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under clause (i) or (ii) above; provided, however, that the indemnity set forth in this Section 7(a) shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission contained in the Registration Statement or any Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Dealer-Manager Information); (ii) any withdrawal Partnership by or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent on behalf of the Company Manager expressly for use in the Registration Statement or in conformity with actions taken any Prospectus (or omitted any amendment or supplement to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified partysuch documents).
(b) The Dealer-Manager shall agrees to indemnify and hold harmless the Partnership, the General Partner, the Company, its officersthe directors of the General Partner and the Company, directors and employeesthe officers of the Company who signed the Registration Statement, each of its directors and each Personperson, if any, who controls the Partnership, the General Partner or the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all loss, liability, claim, damage or liabilityand expense described in the indemnity contained in Section 7(a) (provided that with respect to indemnification of the nature contemplated by Section 7(a)(ii), joint or several, or such indemnification by the Manager for a settlement of any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, liability, claim, damagedamage and expense must be effected with the written consent of the Manager), liability or action arises out ofas incurred, or is based upon: (i) but only with respect to any untrue statement statements or omissions, or alleged untrue statement of a material fact contained statements or omissions, made in the Registration Statement or any Prospectus (A) in or any Offer Documents, or in any such amendment or supplementsupplement to such documents), in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Partnership by or on behalf of the Manager Informationexpressly for use in the Registration Statement, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company Base Prospectus or any Prospectus (or any amendment or supplement to such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurreddocuments).
(c) If any lawsuit, claim or proceeding is brought against any Each indemnified party shall give written notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnification indemnity may be sought against the indemnifying party pursuant hereunder, but failure to this Section 11, such indemnified party shall promptly so notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the an indemnifying party shall not relieve the such indemnifying party from any obligation or liability which it may have under this Section 11 except hereunder to the extent that it has been is not materially prejudiced in any material respect by such failure as a result thereof and in any event shall not relieve the indemnifying party it from any other obligation or liability which it may have to such indemnified party otherwise than under on account of this Section 11indemnity agreement. In the case any such lawsuitof parties indemnified pursuant to Section 7(a) above, claim or proceeding counsel to the indemnified parties shall be brought against any indemnified party and such indemnified party shall notify selected by the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceedingManager, and, in the case of parties indemnified pursuant to Section 7(b) above, counsel to the indemnified parties shall be selected by the Partnership, provided that if it so elects within a reasonable time after written notice from the receipt of such notice, an indemnifying party to such indemnified party, to jointly with any other indemnifying parties receiving such notice, may assume the defense of such lawsuit, claim or proceeding action with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by it and approved by the indemnifying party to represent indemnified parties defendant in such action, unless such indemnified party would present parties reasonably object to such counsel with a conflict of interest; (ii) assumption on the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded ground that there may be legal defenses available to it or to other indemnified parties them which are different from or in addition to those available to such indemnifying party. If an indemnifying party assumes the defense of such action, the indemnifying parties shall not be liable for any fees and expenses of counsel for the indemnified parties incurred thereafter in connection with such action; provided, however, that the indemnifying party shall pay the fees and expenses of separate counsel for the indemnified party if (i) the indemnifying party has agreed to pay such fees and expenses or (ii) counsel for the indemnified party reasonably determines that representation of both the indemnifying party and the indemnified party by the same counsel would create a conflict of interest. An indemnifying party may participate at its own expense in which case the defense of any such action; provided, however, that counsel to the indemnifying party shall not have (except with the right to direct the defense of such action on behalf consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 (whether or not the indemnified parties are actual or potential parties thereto); , unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 7(a)(ii) 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) the such indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent reimbursed such indemnified party within a reasonable in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding sentence, if at any time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the an indemnified party shall have requested an indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not reimburse the indemnified party is a formal party to any such lawsuitfor fees and expenses of counsel, claim or proceeding. The an indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding the nature contemplated by Section 7(a)(ii) effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a(i) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by reimburses such indemnified party in connection accordance with investigatingsuch request to the extent it considers such request to be reasonable and (ii) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, preparing in each case prior to defend or defending any the date of such action or claimsettlement.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 7 is for any reason held unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderin respect of any losses, the Companyliabilities, on the one handclaims, and Maximdamages or expenses referred to therein, on the other hand, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages, liabilities damages and expenses of the nature contemplated incurred by such indemnification provision indemnified party, as incurred, (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyi) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the CompanyPartnership, on the one hand, and Maximthe Manager, on the other hand, from the Rights Offering or, offering of the Units pursuant to this Agreement or (ii) if such the allocation provided by clause (i) is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the CompanyPartnership, on the one hand, and Maximof the Manager, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages, liabilities damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the CompanyPartnership, on the one hand, and Maximthe Manager, on the other hand, in connection with the offering of the Units pursuant to this Agreement shall be deemed to be in the same proportion as: (x) respective proportions as the total proceeds Net Proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) Units pursuant to this Agreement received by the Company bears to (y) Partnership, and the fees of the Dealer-Manager set forth in Section 6 hereof actually total compensation received by the Dealer-Manager, in each case as provided in Section 3(a)(iv), bear to the gross sales price of the Units sold by or through the Manager. The relative fault of each of the CompanyPartnership, on the one hand, and Maximthe Manager, on the other hand, shall be determined by reference to, among other things, whether the any such untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Partnership or Maxim (which consists solely and exclusively of by the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Partnership and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f7(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this SectionSection 7(e). The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 7(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) 7(e), the Dealer-Manager shall not be required to contribute any amount in excess of the fees actually compensation received by the Dealer-Manager from the Company it pursuant to this Agreement, as determined in connection accordance with the Rights Offering and (ii) no Person Section 3(a)(iv). No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 117(e), each Person controlling a Dealer-affiliate of the Manager and each person, if any, who controls the Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, shall have the same rights to contribution as the Manager; each director of the General Partner and the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Partnership, the General Partner or the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Managerthe Partnership, the General Partner and each Person, if any, who controls the Company within the meaning of Section 15 Company. The obligations of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have Partnership under this Section 11(f7(e) or otherwiseshall be in addition to any liability which the Partnership may otherwise have.
Appears in 2 contracts
Sources: Equity Distribution Agreement (Kinder Morgan Energy Partners L P), Equity Distribution Agreement (Kinder Morgan Energy Partners L P)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, or any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, and with respect to such prospectuses in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (includingagrees to reimburse each such indemnified party, but not limited toas incurred, for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of it in connection with investigating or defending any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out ofaction; provided, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentshowever, or that the Company will not be liable in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement, and shall reimburse each person who controls the Company and any such directorwithin the meaning of either the Act or the Exchange Act, officer or controlling Person for any legal or other expenses reasonably incurred by to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with respect to any losses, claims, damages or liabilities that arise out of or are based upon any untrue statements or omission made in written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Securities and, under the heading “Underwriting”, (ii) the list of Underwriters and their respective participation in the sale of the Securities, (iii) the sentences related to concessions and reallowances, (iv) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus and (v) the paragraph with respect to compliance with Rule 5110(h) of the Financial Industry Regulatory Authority, Inc. constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredIssuer Free Writing Prospectus.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise have knowledge of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of any such lawsuit, claim or proceeding with action and appoint counsel (including local counsel) of its the indemnifying party’s choice at its expensethe indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party’s election of to appoint counsel (including local counsel) to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the actual or potential defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); , (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; action or (iv) the indemnifying party shall authorize such the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuitaction) unless such settlement, claim compromise or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions i) includes an unconditional release of this Section 11, to indemnify the each indemnified party from and against any loss, damage or all liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuitsuch claim, claim action, suit or proceeding against it arising out and (ii) does not include a statement as to or an admission of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuitfault, claim culpability or proceeding a failure to act, by or on behalf of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid In the event that the indemnity provided in paragraph (a), (b) or payable by an indemnified party as a result (c) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held 8 is unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderfor any reason, the Company, on Company and the one hand, and Maxim, on the other hand, shall Underwriters severally agree to contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and or other expenses reasonably incurred in connection withwith investigating or defending any loss, and any amount paid in settlement ofclaim, any damage, liability or action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred (collectively “Losses”) to which the Company and Maxim one or more of the Underwriters may be subject, subject in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, by the Underwriters on the other hand, from the Rights Offering oroffering of the Securities; provided, if however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is not permitted by applicable lawunavailable for any reason, the Company and the Underwriters severally shall contribute in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, of the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company, on the one hand, and Maxim, on the other hand, Company shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually it, and benefits received by the Dealer-Manager. The relative fault of Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Company, on the one hand, and Maxim, on the other hand, Final Prospectus. Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied provided by the Company on the one hand or Maxim (which consists solely and exclusively the Underwriters on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionabove. Notwithstanding the provisions of this Section 11: paragraph (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 118, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, Act and each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses the applicable terms and conditions of this paragraph (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwised).
Appears in 2 contracts
Sources: Underwriting Agreement (Wyndham Worldwide Corp), Underwriting Agreement (Wyndham Worldwide Corp)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and each Underwriter against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, as incurred, to which such Underwriter may become subject under the Securities Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: upon (i) any breach of any representation, warranty, agreement or covenant of the Company herein contained, or (ii) any untrue statement or alleged untrue statement made by the Company in Section 2 hereof, or (iv) any untrue statement or alleged untrue statement of a material fact contained (A) in the Offer Documents Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or (B) in any blue sky application or other document prepared or executed by the Company (specifically for that purpose or based on any upon written information furnished by the Company) specifically for the purpose of qualifying Company filed in any state or other jurisdiction in order to qualify any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction thereof (any such application, document documents or information being hereinafter called a “"Blue Sky Application”"), or (iii) or arising out of or based upon the omission or alleged omission to state in the Registration Statement or any such document amendment thereto a material fact required to be stated therein or necessary to make the statements therein not misleading, or the omission or alleged omission to state in order any preliminary prospectus, the Prospectus or any supplement thereto or in any Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (misleading; and shall reimburse each Underwriter on a monthly basis for any legal or other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination reasonable expenses as incurred by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or such Underwriter in connection with investigating or alleged to arise out of, relate to defending against or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred appearing as a third-party witness in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action action, notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case the person receiving them shall promptly refund them; except that the Company shall not be liable in any such case to the extent, but only to the extent, that any such loss, claim, damage or liability arises out of, of or is based upon: upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, such preliminary prospectus or the Prospectus, or any amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter specifically for use in the preparation thereof and, provided further, that the indemnity agreement provided in this Section 8(a) with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any losses, claims, charges, liabilities or litigation based upon any untrue statement or alleged untrue statement of material fact or omission or alleged omission to state therein a material fact purchased Shares, if a copy of the Prospectus in which such untrue statement or alleged untrue statement or omission or alleged omission was corrected has not been sent or given to such person within the time required by the Act and the Rules and Regulations thereunder, unless such failure is the result of noncompliance by the Company with Section 4(c) hereof.
(b) Each Underwriter severally, but not jointly, shall indemnify and hold harmless the Company against any losses, claims, damages or liabilities, joint or several, as incurred, to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained (A) in the Registration Statement, preliminary prospectus, the Prospectus or any Offer Documents, or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; , or (ii) the omission or alleged omission to state in the Registration Statement or any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any thereto a material fact required to be stated therein or necessary to make the statements therein not misleading, but or the omission or alleged omission to state in any preliminary prospectus, the Prospectus or any supplement thereto or in any Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that such indemnification shall be available in each such case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager Information, Company through the Underwriters by or on behalf of such Underwriter specifically for use in the preparation thereof; and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating investigation or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredaction.
(c) If Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of any lawsuit, claim or proceeding is brought against the commencement of any action, the indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such an indemnified party otherwise than under this Section 11such subsection. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written notice from to the extent that it wishes, jointly with any other similarly notified indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding thereof with counsel of its choice at its expensereasonably satisfactory to the indemnified party; provided, however, that if the defendants in any such counsel shall be satisfactory to action include both the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, parties and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party, the indemnified party (in which case the indemnifying party or parties shall not have the right to direct select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under such subsection for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with appropriate local counsel) approved by the indemnifying party, representing all the indemnified parties under Section 8(a) and 8(b) hereof who are parties to such action); , (iiiii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of commencement of the institution of any such lawsuitaction, claim or proceeding; or (iviii) the indemnifying party shall authorize such has authorized the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments In no event shall apply whether or not any indemnifying party be liable in respect of any amounts paid in settlement of any action unless the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement have approved the terms of any lawsuitsuch settlement; provided, claim or proceeding effected without its however, that such consent (which consent will shall not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for just and equitable contribution in circumstances any action in which the a claim for indemnification provided for in is made pursuant to this Section 11 8 for any reason held which it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunderenforced in such case notwithstanding the fact that this Section 8 provides for indemnification in such case, all the Company, on the one hand, and Maxim, on the other hand, parties hereto shall contribute to the aggregate losses, claims, damages, damages or liabilities and expenses of to which they may be subject (after contribution from others) in such proportion so that the nature contemplated Underwriters are responsible pro rata for the portion represented by such indemnification provision (including any investigation, legal and other expenses incurred in connection withthe percentage that the underwriting discount bears to the initial public offering price, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Personsis responsible for the remaining portion; provided, other than Maximhowever, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager no Underwriter shall be required to contribute any amount in excess of the fees actually received underwriting discount applicable to the Shares purchased by the Dealer-Manager from the Company in connection with the Rights Offering such Underwriter, and (ii) no Person person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to a contribution from any Person person who was is not guilty of such fraudulent misrepresentation. For purposes of This subsection (d) shall not be operative as to any Underwriter to the extent that the Company has received indemnity under this Section 118.
(e) The obligations of the Company under this Section 8 shall be in addition to any liability which the Company may otherwise have, and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager officer and director of each Underwriter and to each person, if any, who controls any Underwriter within the meaning of Section 15 the Act; and the obligations of the Securities Act or Underwriters under this Section 20 8 shall be in addition to any liability that the respective Underwriters may otherwise have, and shall extend, upon the same terms and conditions, to each director of the Exchange Act shall have Company (including any person who, with his consent, is named in the same rights Registration Statement as about to contribution as such Dealer-Managerbecome a director of the Company), to each officer of the Company who has signed the Registration Statement and to each Personperson, if any, who controls the Company within the meaning of the Securities Act, in either case, whether or not such person is a party to any action or proceeding.
(f) The parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the negotiations regarding the provisions hereof including without limitation the provisions of this Section 15 8, and are fully informed regarding said provisions. They further acknowledge that the provisions of this Section 8 fairly allocate the risks in light of the Securities Act or Section 20 ability of the Exchange Act, each officer of parties to investigate the Company who shall have signed and its business in order to assure that adequate disclosure is made in the Registration Statement and each director Prospectus as required by the Act and the Exchange Act. The parties are advised that federal or state public policy, as interpreted by the courts in certain jurisdictions, may be contrary to certain of the Company shall have provisions of this Section 8, and the same rights parties hereto hereby expressly waive and relinquish any right or ability to contribution assert such public policy as the Company, subject in each case a defense to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise8 and further agree not to attempt to assert any such defense.
Appears in 2 contracts
Sources: Underwriting Agreement (Talisman Enterprise Inc), Underwriting Agreement (Talisman Enterprise Inc)
Indemnification and Contribution. (a) The Company agrees Offerors jointly and severally agree to indemnify and hold harmless each Underwriter, each of its directors, officers and indemnify Maxim agents, and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of the Exchange 1933 Act) Maxim or any of such affiliates from and , against any and all (A) losses, claims, damages damages, liabilities and liabilities whatsoeverexpenses (including reasonable costs of investigation and attorney fees and expenses), under the Securities Act joint or otherwise (as incurred or suffered)several, arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact made by the Company or the Trust contained in the Offer Documents registration statement as originally filed or the Registration Statement, any Preliminary Prospectus or the Prospectus, or in any amendment or supplement thereto; (ii) any omission or alleged omission to state a material fact in the registration statement as originally filed or the Registration Statement, the Preliminary Prospectus or the Prospectus, or in any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and attorney fees), joint or several, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus or the Prospectus, or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission was to state therein a material fact required to be stated therein or necessary to make the statements made therein, in reliance upon and in conformity with light of the Dealer-Manager Informationcircumstances under which they were made, not misleading; or (iii) the enforcement of this indemnification provision or the contribution provisions of Section 7(d); and shall reimburse the Company and any each such director, officer or controlling Person indemnified party for any reasonable 33 legal or other expenses reasonably as incurred, but in no event less frequently than 30 days after each invoice is submitted, incurred by the Company or any such director, officer or controlling Person them in connection with investigating or defending against or preparing to defend against appearing as a third-party witness in connection with any such loss, claim, damage, liability or action as action, notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments shall be promptly refunded; provided, however, that the Offerors shall not be liable in any such case to the extent, but only to the extent, that any such losses, claims, damages, liabilities and expenses arise out of or are incurredbased upon any untrue statement or omission or allegation thereof that has been made therein or omitted therefrom in reliance upon and in conformity with the Underwriters' Information; provided, that the indemnification contained in this paragraph with respect to any Preliminary Prospectus shall not inure to the benefit of any Underwriter (or of any person controlling any Underwriter) to the extent any such losses, claims, damages, liabilities or expenses directly result from the fact that such Underwriter sold Designated Preferred Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus (as amended or supplemented if any amendments or supplements thereto shall have been furnished to you in sufficient time to distribute same with or prior to the written confirmation of the sale involved), if required by law, and if such loss, claim, damage, liability or expense would not have arisen but for the failure to give or send such person such document. The foregoing indemnity agreement is in addition to any liability the Company or the Trust may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless each Offeror, each of its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls an Offeror within the meaning of the 1933 Act, to the same extent as required by the foregoing indemnity from the Company to each Underwriter, but only with respect to the Underwriters' Information. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to any such indemnified party.
(c) If any lawsuit, action or claim shall be brought or proceeding is brought asserted against any indemnified party or any person controlling an indemnified party in respect of which indemnification indemnity may be sought against from the indemnifying party pursuant to this Section 11party, such indemnified party or controlling person shall promptly notify the indemnifying party in writing, and the indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the commencement indemnified party and the payment of such lawsuit, claim or proceedingall expenses; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such an indemnified party otherwise than under this Section 11such paragraph, and further, shall only relieve it from liability under such paragraph to the extent prejudiced thereby. In case Any indemnified party or any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such lawsuitcounsel shall be at the expense of such indemnified party or such controlling person unless (i) the employment thereof has been specifically authorized by the indemnifying party in writing, claim (ii) the indemnifying party has failed to assume the defense or proceeding, to employ counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such action (including any impleaded parties) include both such indemnified party or such controlling person and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party or such controlling person shall have reasonably concluded been advised by such counsel that there may be one or more legal defenses available to it or to other indemnified parties which that are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.those
Appears in 2 contracts
Sources: Underwriting Agreement (Baylake Capital Trust I), Underwriting Agreement (Baylake Capital Trust I)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, or any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, and with respect to such prospectuses in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (includingagrees to reimburse each such indemnified party, but not limited toas incurred, for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of it in connection with investigating or defending any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out ofaction; provided, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentshowever, or that the Company will not be liable in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement, and shall reimburse each person who controls the Company and any such directorwithin the meaning of either the Act or the Exchange Act, officer or controlling Person for any legal or other expenses reasonably incurred by to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with respect to any losses, claims, damages or liabilities that arise out of or are based upon any untrue statements or omission made in written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Securities and, under the heading “Underwriting”, (ii) the list of Underwriters and their respective participation in the sale of the Securities, (iii) the sentences related to concessions and reallowances, (iv) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus and (v) the paragraph with respect to compliance with NASD Rule 2720 of the Financial Industry Regulatory Authority, Inc. constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredIssuer Free Writing Prospectus.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise have knowledge of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of any such lawsuit, claim or proceeding with action and appoint counsel (including local counsel) of its the indemnifying party’s choice at its expensethe indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party’s election of to appoint counsel (including local counsel) to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the actual or potential defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); , (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; action or (iv) the indemnifying party shall authorize such the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuitaction) unless such settlement, claim compromise or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions i) includes an unconditional release of this Section 11, to indemnify the each indemnified party from and against any loss, damage or all liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuitsuch claim, claim action, suit or proceeding against it arising out and (ii) does not include a statement as to or an admission of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuitfault, claim culpability or proceeding a failure to act, by or on behalf of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid In the event that the indemnity provided in paragraph (a), (b) or payable by an indemnified party as a result (c) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held 8 is unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderfor any reason, the Company, on Company and the one hand, and Maxim, on the other hand, shall Underwriters severally agree to contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and or other expenses reasonably incurred in connection withwith investigating or defending any loss, and any amount paid in settlement ofclaim, any damage, liability or action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred (collectively “Losses”) to which the Company and Maxim one or more of the Underwriters may be subject, subject in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, by the Underwriters on the other hand, from the Rights Offering oroffering of the Securities; provided, if however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is not permitted by applicable lawunavailable for any reason, the Company and the Underwriters severally shall contribute in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, of the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company, on the one hand, and Maxim, on the other hand, Company shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually it, and benefits received by the Dealer-Manager. The relative fault of Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Company, on the one hand, and Maxim, on the other hand, Final Prospectus. Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied provided by the Company on the one hand or Maxim (which consists solely and exclusively the Underwriters on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionabove. Notwithstanding the provisions of this Section 11: paragraph (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 118, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, Act and each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses the applicable terms and conditions of this paragraph (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwised).
Appears in 2 contracts
Sources: Underwriting Agreement (Wyndham Worldwide Corp), Underwriting Agreement (Wyndham Worldwide Corp)
Indemnification and Contribution. (a) The Company agrees to will indemnify and hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and each Underwriter against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) any upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, the Offer Documents Prospectus or any amendment or supplement thereto, or any related preliminary prospectus supplement (or contained in any other solicitation material used by Registration Statement after it first becomes effective but prior to the Company or authorized by it for use in connection with the Rights Offering, Pricing Agreement or in any blue sky application prospectus forming a part thereof during such period), or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in each connection with investigating or defending any such action or claim; provided, however, that the Company shall not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter, directly or through the Representatives, expressly for use therein; and provided, further, that the Company shall not be liable to any Underwriter under the indemnity agreement in this subsection (a) to the extent that any such loss, claim, damage or liability of such Underwriter results from the fact that such Underwriter sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus or the Prospectus as then amended or supplemented (excluding documents incorporated by reference) in any case where such delivery is required by the Act and the untrue statement or omission of a material fact contained in the Prospectus, any such amendment or supplement thereto or any such other document was corrected in the Prospectus or the Prospectus as then amended or supplemented if the Company has furnished prior to such confirmation sufficient copies thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, the Prospectus or any amendment or supplement thereto, or any related preliminary prospectus supplement, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by such Underwriter, directly or through the Representatives, expressly for use therein; and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, action or claim, damage, liability or action as such expenses are incurred.
(c) If Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of any lawsuit, claim or proceeding is brought against of the commencement of any action, such indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure in writing thereof. The omission so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to any indemnified party, provided that, in the case of any such indemnified omission relating to the commencement of an action, such omission shall relieve the indemnifying party otherwise than of liability under this Section 11such subsection. In case any such lawsuit, claim or proceeding action shall be brought against any indemnified party and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuitthereof, claim or proceeding with counsel of its choice at its expensesatisfactory to such indemnified party; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) if the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties parties, or both, which are different from or in addition additional to those available to the indemnifying party, the indemnified party (in which case the indemnifying party or parties shall not have the right to direct select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party or its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof (other than reasonable costs of investigation conducted at the request of such indemnifying party) unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by such indemnifying party, representing the indemnified parties under such subsection who are parties to such action); , (iiiii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of commencement of the institution of any such lawsuit, claim or proceeding; action or (iviii) the indemnifying party shall authorize such has authorized the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments ; and except that, if clause (i) or (iii) is applicable, such liability shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, only in respect of the assertion of any lawsuit, claim counsel referred to in such clause (i) or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximiii).
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held to 5 shall be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderunder subsection (a) or (b) above in respect of any losses, the Companyclaims, on the one handdamages or liabilities (or actions in respect thereof) referred to therein, and Maxim, on the other hand, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred or actions in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only offering of the relative benefits referred to above but Designated Securities and also the relative fault of the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the offering of the Designated Securities shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering of such Securities (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-ManagerUnderwriters in respect thereof, in each case as set forth on the cover page of the Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the indemnified party failed to give the notice required under subsection (c) above, including the consequences of such failure, and whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, of the Company on the one hand and the Underwriters, directly or through the Representatives, on the other hand. With respect to any Underwriter, such relative fault shall also be determined by reference to the extent (if any) to which such losses, claims, damages or liabilities (or actions in respect thereof) result from the fact that such Underwriter sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus or the Prospectus as then amended or supplemented (excluding documents incorporated by reference) if the Company has furnished prior to such confirmation copies thereof to such Underwriter. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(fsubsection (d) were determined by pro rata per-capita allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Sectionsubsection (d). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions in respect thereof) referred to above in this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationsuch action or claim. Notwithstanding the provisions of this subsection (d), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the applicable Designated Securities, underwritten by it and distributed to the public were offered to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The obligations of the Underwriters in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 115 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager person, if any, who controls any Underwriter within the meaning of Section 15 the Act, and the obligations of the Securities Act or Underwriters under this Section 20 5 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Exchange Act shall have Company, to each officer of the same rights Company who signs the Registration Statement and to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Underwriting Agreement (United Technologies Corp /De/), Underwriting Agreement (United Technologies Corp /De/)
Indemnification and Contribution. (a) The Company Each Issuer, jointly and severally, agrees to indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Securities Act or Section 20 of the Exchange Act) Maxim or any of such Act and their agents and affiliates from and against any and all (A) losses, claims, damages and or liabilities whatsoeverto which any Underwriter or such controlling person, agent or affiliate may become subject under the Securities Act, the Exchange Act or otherwise otherwise, insofar as any such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: :
(i) any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Prospectus, any other Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto;
(ii) the omission or alleged omission to state, in the Preliminary Prospectus, any other Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading; or
(iii) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement or caused by any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in not misleading, and will reimburse, as incurred, the light of the circumstances under which they were madeUnderwriters and each such controlling person, not misleading (agent or affiliate for any legal or other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination expenses incurred by the Company ofUnderwriters or such controlling person, agent or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred affiliate in connection with investigating, preparing to defend defending against or defending appearing as a third-party witness in connection with any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any such loss, claim, damage, liability or expense pursuant action; provided, however, the Issuers will not be liable in any such case to the preceding sentence which has been determined extent that any such loss, claim, damage, or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in a final judgment the Registration Statement, the Preliminary Prospectus, any other Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information concerning the Underwriters furnished to the Issuers by a court the Underwriters through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of competent jurisdiction the Underwriters consists of the information as set forth in Section 12 hereof. The indemnity provided for in this Section 9 will be in addition to any liability that any Issuer may otherwise have resulted directly from willful misconduct or gross negligence to the indemnified parties. Nothing in this Section 9(a) shall be deemed to impose on the part of Underwriters any indemnified partyinformational delivery obligations in addition to those arising under applicable law.
(b) The Dealer-Manager shall Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the CompanyIssuers, its officerstheir directors, directors and employees, each of its directors their officers and each Personperson, if any, who controls the Company any Issuer within the meaning of Section 15 of the Securities Act, from and Act against any losslosses, claimclaims, damage damages or liability, joint or several, or any action in respect thereof, liabilities to which the Company any Issuer or any such director, officer or controlling Person person may become subject, subject under the Securities Act or otherwise, insofar as such losslosses, claimclaims, damage, liability damages or action arises liabilities (or actions in respect thereof) arise out of, of or is are based upon: upon (i) any untrue statement or alleged untrue statement of a any material fact contained (A) in the Preliminary Prospectus, any Offer Documentsother Time of Sale Information, any Issuer Free Writing Prospectus or in the Prospectus or any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; supplement thereto or (ii) the omission or the alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein in the Preliminary Prospectus, any other Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto, or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information concerning such Underwriter furnished to the Company by or on behalf of such Underwriter specifically for use therein, it being understood and any agreed that the only such directorinformation furnished by or on behalf of the Underwriters consists of the information as set forth in Section 12 hereof; and subject to the limitation set forth immediately preceding this clause, officer or controlling Person for will reimburse, as incurred, any legal or other expenses reasonably incurred by the Company any Issuer or any such director, officer or controlling Person person in connection with investigating or defending against or preparing to defend against appearing as a third party witness in connection with any such loss, claim, damage, liability or action as such expenses are incurredin respect thereof. The indemnity provided for in this Section 9 will be in addition to any liability that the Underwriters may otherwise have to the indemnified parties.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action for which such indemnified party is entitled to indemnification under this Section 9, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 119, such indemnified party shall promptly notify the indemnifying party of the commencement thereof in writing; but the omission to so notify the indemnifying party (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraphs (a) and (b) above. In case any such lawsuitaction is brought against any indemnified party, claim or proceedingand it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it or to and/or other indemnified parties which that are different from or in addition additional to those available to the indemnifying party or (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after receipt by the indemnifying party of notice of the institution of such action, then, in which case each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 9 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party); party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (iii) it being understood, however, that in connection with such action the indemnifying party shall not have employed be liable for the expenses of more than one separate counsel satisfactory (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Representatives in the case of paragraph (a) of this Section 9 or the relevant Issuer(s) in the case of paragraph (b) of this Section 9, representing the indemnified parties under such paragraph (a) or paragraph (b), as the case may be, who are parties to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim action or proceeding; actions) or (ivii) the indemnifying party shall authorize such has authorized in writing the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments All fees and expenses reimbursed pursuant to this paragraph (c) shall apply whether or not be reimbursed as they are incurred. After such notice from the indemnified party is a formal indemnifying party to any such lawsuitindemnified party, claim or proceeding. The the indemnifying party shall will not be liable for the costs and expenses of any settlement of any lawsuit, claim or proceeding such action effected by such indemnified party without its the prior written consent of the indemnifying party (which consent will shall not be unreasonably withheld), but if settled with unless such consent, the indemnifying indemnified party agrees, subject to the provisions of waived in writing its rights under this Section 119, to indemnify in which case the indemnified party from and against any lossmay effect such a settlement without such consent. Notwithstanding the foregoing, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to no indemnifying party shall be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of liable under this Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that 9 for any settlement of a lawsuit, any claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from action effected without its prior written consent. No indemnifying party shall, without the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) prior written consent of the Exchange Act) Maximindemnified party, effect any settlement or compromise of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party, or indemnity could have been sought hereunder by such party, unless such settlement does not include any statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party.
(d) The In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 9 is unavailable to, or insufficient to hold harmless, an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), each indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by an such indemnified party as a result of the such losses, claims, damages, damages or liabilities (or expenses referred to actions in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(erespect thereof) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect (i) the relative benefits received by the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, from the Rights Offering or, offering of the Notes or (ii) if such the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportions as are appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, in connection with the statements or omissions which or alleged statements or omissions that resulted in such losses, claims, damages, damages or liabilities (or expenses, as well as any other relevant equitable considerationsactions in respect thereof). The relative benefits received by the Company, Issuers on the one hand, hand and Maxim, any Underwriter on the other hand, shall be deemed to be in the same proportion as: (x) as the total proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total discounts and commissions received by the Dealer-Managersuch Underwriter. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Issuers, on the one hand, or Maxim (which consists solely and exclusively of such Underwriter, on the Dealer-Manager Information) and other, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or alleged statement or omission, and any other equitable considerations appropriate in the circumstances. The Company Issuers and the Dealer-Manager Underwriters agree that it would not be just and equitable if the amount of such contribution pursuant to this Section 11(f) were determined by pro rata or per capita allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this Sectionparagraph (d). The Notwithstanding any other provision of this paragraph (d), no Underwriter shall be obligated to make contributions hereunder that in the aggregate exceed the total discounts, commissions and other compensation received by such Underwriter under this Agreement, less the aggregate amount of losses, liabilities, claims, any damages and expenses incurred that such Underwriter has otherwise been required to pay by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such reason of the untrue or alleged untrue statement statements or omission the omissions or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required omissions to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering state a material fact, and (ii) no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11paragraph (d), each Person controlling a Dealer-Manager person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or shall have the same rights to contribution as the Underwriters, and each director of any Issuer, each officer of any Issuer and each person, if any, who controls any Issuer within the meaning of Section 20 15 of the Exchange Securities Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights Issuer. The Underwriters’ obligations to contribution as the Company, subject in each case contribute pursuant to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f9(d) or otherwiseare several in proportion to their respective purchase obligations and not joint.
Appears in 2 contracts
Sources: Underwriting Agreement (Directv), Underwriting Agreement (Directv)
Indemnification and Contribution. (a) The Company agrees to will indemnify and hold harmless and indemnify Maxim each Underwriter, its partners, members, directors, officers and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates from and , against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Registration Statement at any time, any Statutory Prospectus at any time, the Prospectus or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights OfferingIssuer Free Writing Prospectus, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in each connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company specifically for use therein by any (i) Underwriter through the Representatives, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (c) below or (ii) Selling Securityholder, if any.
(b) The Selling Securityholders, severally and not jointly, will indemnify and hold harmless each Underwriter, its partners, members, directors officers and its affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement at any time, any Statutory Prospectus at any time, the Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Selling Securityholders will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (c) below; and provided further the indemnity provided for in this paragraph (b) shall apply only to the extent that any such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by the applicable Selling Securityholder specifically for use therein, it being understood and agreed that the only such information furnished by any Selling Securityholder consists of that information regarding such Selling Securityholder and its ownership of Common Stock set forth in the Registration Statement and the Prospectus under the caption “Principal and Selling Stockholders”; and provided further that the aggregate liability under this subsection of each Selling Securityholder shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Securityholder from the sale of Offered Securities sold by such Selling Securityholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold harmless the Company, its directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of the Act and each Selling Securityholder, against any losses, claims, damages or liabilities to which the Company or any Selling Securityholder may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement at any time, any Statutory Prospectus at any time, the Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives, if any, specifically for use therein, and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person and each Selling Securityholder in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures appearing in the fourth paragraph under the caption “Underwriting” and the information contained in the twelfth paragraph under the caption “Underwriting” concerning stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids.
(cd) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to under this Section 11of notice of the commencement of any action, such indemnified party shall promptly will, if a claim in respect thereof is to be made against an indemnifying party under subsection (a), (b) or (c) above, notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which that it may have under this Section 11 subsection (a), (b) or (c) above except to the extent that it has been materially prejudiced in any material respect (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure and in any event to notify the indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which that it may have to such an indemnified party otherwise than under this Section 11subsection (a), (b) or (c) above. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party and such indemnified party shall notify the it notifies an indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense of thereof, the indemnifying party will not be liable to such lawsuit, claim indemnified party under this Section for any legal or proceeding with counsel of its choice at its expense; provided, however, that other expenses subsequently incurred by such counsel shall be satisfactory to the indemnified party in connection with the exercise defense thereof other than reasonable costs of its reasonable judgmentinvestigation. Notwithstanding the election of the No indemnifying party to assume shall, without the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf prior written consent of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for effect any settlement of any lawsuit, claim pending or proceeding effected without its consent threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (which consent will not be unreasonably withheld), but if settled with i) includes an unconditional release of such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against all liability on any loss, damage or liability by reason claims that are the subject matter of such settlement. The Company agrees to notify Maxim promptlyaction and (ii) does not include a statement as to, or cause Maxim an admission of, fault, culpability or a failure to be notified promptly, act by or on behalf of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(de) The If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to includesubsection (a), subject to the limitations set forth above, any legal (b) or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(ec) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
above (fi) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company and the Selling Securityholders on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering of the Offered Securities or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company and the Selling Securityholders on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company and the Selling Securityholders on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears and the Selling Securityholders bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-ManagerUnderwriters. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Securityholders or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined amount paid by pro rata allocation or by any other method of allocation which does not take account an indemnified party as a result of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this subsection (e). Notwithstanding the provisions of this subsection (e), (x) no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and (y) no Selling Securityholder shall be required to contribute pursuant to this subsection (e) an aggregate amount in excess of the amount by which the aggregate gross proceeds after underwriting discounts and commissions but before expenses to such Selling Securityholder from the sale of Offered Securities sold by such Selling Securityholder hereunder exceeds the amount of any investigation or proceeding damages which such Selling Securityholder has otherwise been required to pay by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The Underwriters’ obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Securityholders under this Section 11shall be in addition to any liability which the Company and the Selling Securityholders may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager partner, director and officer of, and each person, if any, who controls, any Underwriter within the meaning of Section 15 the Act; and the obligations of the Securities Act or Underwriters under this Section 20 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Exchange Act shall have Company, to each officer of the same rights Company who has signed the Registration Statement and to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company within the meaning of Section 15 the Act.
(g) Nothing contained in this Agreement shall be deemed to limit or affect any provision of the Securities Act or Section 20 of Registration Rights Agreement, including, without limitation, the Exchange Act, each officer of indemnification and contribution provisions thereof as between the Company who shall have signed and the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseSelling Securityholders.
Appears in 2 contracts
Sources: Underwriting Agreement (Lane Industries Inc /De/), Underwriting Agreement (Acco Brands Corp)
Indemnification and Contribution. (a) The Company agrees to Each of DFS and the Seller shall, jointly and severally, indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange ActAct as follows:
(i) Maxim or any of such affiliates from and against any and all (A) lossesloss, claimsliability, damages claim, damage and liabilities expense whatsoever, under the Securities Act or otherwise (as incurred or suffered)incurred, arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement (or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering), or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); misleading;
(ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, against any and all reasonable legal expenses) incurred loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in connection with investigatingsettlement of any litigation, preparing to defend or defending any lawsuit, claim investigation or other proceedingproceeding by any governmental agency or body, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for claim whatsoever based upon any loss, claim, damage, liability such untrue statement or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or severalomission, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity omission, if such settlement is effected with the Dealer-Manager Information, written consent of the Seller and DFS (which consent shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend not be unreasonably withheld); and
(iii) against any such lossand all expense whatsoever (including, claim, damage, liability or action as such expenses are incurred.
(csubject to Section 7(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedinghereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel fees and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use disbursements of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (iiRepresentative) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this Section 7 shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made (A) in reliance upon and in conformity with written information furnished to the Seller by the Representative expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) and set forth in the Prospectus and in the Prospectus Supplement, in each case as specified in the related Terms Agreement, or (B) in any ABS Filing or any amendment or supplement thereof, except to the extent that any untrue statement or alleged omission. Notwithstanding untrue statement therein or omission therefrom results (or is alleged to have resulted) from an error (a "Pool Error") in the provisions of this Section 11: (i) information concerning the Dealer-Manager shall be required to contribute any amount in excess characteristics of the fees actually received Receivables furnished by the Dealer-Manager from Seller to the Company Underwriter in connection with writing or by electronic transmission that was used in the Rights Offering preparation of any Computational Materials or ABS Term Sheets (or amendments or supplements thereof) included in such ABS Filing (or amendment or supplement thereof).
(b) Each Underwriter severally agrees to indemnify and (ii) no Person guilty of fraudulent misrepresentation (within hold harmless the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11Seller and DFS, each Person controlling a Dealer-Manager of their respective directors, each of their respective officers who signed the Registration Statement, and each person, if any, who controls the Seller and DFS, respectively, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of the Company who shall have signed this Section 7, as incurred, but only with respect to (i) untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and each director of in conformity with written information furnished to the Company shall have Seller through the same rights to contribution as Representative expressly for use in the CompanyRegistration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto), subject in each case to clauses (i) and as specified in the related Terms Agreement, or (ii) of any Computational Materials or ABS Term Sheets (or amendments or supplements thereof) furnished to the immediately preceding sentence. Any Seller by such Underwriter through the Representative pursuant to Section 9 or Section 10, or directly by such Underwriter, to the extent that such materials were delivered to investors by such Underwriter, and incorporated by reference in such Registration Statement or the related Prospectus or any amendment or supplement thereof (except that no such indemnity shall be available for any losses, claims, damages or liabilities, or actions in respect thereof, resulting from any Pool Error).
(c) Each indemnified party entitled shall give notice as promptly as reasonably practicable to contribution will, promptly after receipt of notice of commencement each indemnifying party of any action, suit or proceeding action commenced against such party in it with respect of to which a claim for contribution indemnity may be made against another party or parties, notify each party or parties from whom contribution may be soughtsought hereunder, but the omission failure to so notify such an indemnifying party or parties shall not relieve the party or parties from whom contribution may be sought it from any obligation liability which it or they may have under otherwise than on account of this Section 11(f7. An indemnifying party may participate at its own expense in the defense of any such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or otherwiseseparate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.
Appears in 2 contracts
Sources: Underwriting Agreement (Distribution Financial Services Floorplan Master Trust), Underwriting Agreement (Deutsche Floorplan Receivables L P)
Indemnification and Contribution. (a) The Company agrees to will indemnify and hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and each Underwriter against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject under the Securities Act 1933 Act, or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) (i) arise out of or are based upon: upon any breach of any warranty or covenant of the Company herein contained, (iii) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in (A) any Preliminary Prospectus, the Offer Documents Registration Statement, or the Prospectus, or any amendment or supplement thereto, in or (B) any application or other solicitation material used document, or any amendment or supplement thereto, executed by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any upon written information furnished by the Company) specifically for the purpose of qualifying any or all on behalf of the Rights or Company filed in any jurisdiction in order to qualify the Rights Shares or Rights Warrants Securities under the securities or blue sky laws of thereof or filed with the Commission or any state securities association or other jurisdiction securities exchange (any such applicationeach an "Application"), document or information being hereinafter called a “Blue Sky Application”(iii) or arising arise out of or are based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummatePreliminary Prospectus, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection withRegistration Statement, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or severalProspectus, or any action in respect thereofamendment or supplement thereto, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of Application a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in each connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, or the Prospectus, or any such amendment or supplement, or in any Application, in reliance upon and in conformity with written information furnished to the Company by any Underwriter expressly for use therein; and provided further, however, that with respect to any Preliminary Prospectus or any amendment or supplement thereto, the foregoing indemnity shall not inure to the benefit of any Underwriter from whom the person asserting any loss, claim, damage or liability purchased Securities, if copies of the Prospectus were timely delivered to the Underwriter, a copy of the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriters to such person, if required by law so as to have been delivered, at or prior to the written confirmation of the sale of the Securities to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense. In addition to its other obligations under this Section 6(a), the Company agrees that as an interim measure during the pendency of any such claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 6(a), it will reimburse the Underwriters on a quarterly basis for all reasonable legal and other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company's obligation to reimburse the Underwriters for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. Any such interim reimbursement payments that are not made to an Underwriter within 30 days of a request for reimbursement shall bear interest at the prime rate (or reference rate or other commercial lending rate for borrowers of the highest credit standing) published from time to time by The Wall Street Journal (the "Prime Rate") from the date of such request. This indemnity agreement shall be in addition to any liabilities that the Company may otherwise have. The Company will not, without the prior written consent of each Underwriter, settle or compromise or consent to the entry of any judgment in any pending or threatened action or claim or related cause of action or portion of such cause of action in respect of which indemnification may be sought hereunder (whether or not such Underwriter is a party to such action or claim), unless such settlement, compromise or consent includes an unconditional release of such Underwriter from all liability arising out of such action or claim (or related cause of action or portion thereof). The indemnity agreement in this Section 6(a) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act to the same extent as such agreement applies to the Underwriters.
(b) Each Underwriter, severally but not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the 1933 Act, or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any breach of any warranty or covenant by such Underwriter herein contained or any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, any 462(b) Registration Statement or the Prospectus, or any amendment or supplement thereto or in any Application, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement thereto or in any Application in reliance upon and in conformity with written information furnished to the Dealer-Manager Information, Company by such Underwriter expressly for use therein; and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, claim damage, liability or action action. In addition to its other obligations under this Section 6(b), the Underwriters agree that, as an interim measure during the pendency of any such claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 6(b), they will reimburse the Company on a monthly basis for all reasonable legal and other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of their obligation to reimburse the Company for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. Any such interim reimbursement payments that are incurred.
(c) If not made to the Company within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement shall be in addition to any lawsuitliabilities that the Underwriters may otherwise have. No Underwriter will, without the prior written consent of the Company, settle or compromise or consent to the entry of judgment in any pending or threatened action or claim or proceeding is brought against any indemnified party related cause of action or portion of such cause of action in respect of which indemnification may be sought hereunder (whether or not the Company is a party to such action or claim), unless such settlement, compromise or consent includes an unconditional release of the Company from all liability arising out of such action or claim (or related cause of action or portion thereof). The indemnity agreement in this Section 6(b) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each officer and director of the Company and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act to the same extent as such agreement applies to the Company.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the commencement thereof; no indemnification provided for in subsection (a) or (b) shall be available to any party who shall fail to give notice as provided in this subsection (c) if the party to whom notice was not given was unaware of the proceeding to which such lawsuit, claim or proceeding; provided, however, that notice would have related and was prejudiced by the failure to give such notice, but the omission so to notify the indemnifying party shall will not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 116. In case any such lawsuit, claim or proceeding action shall be brought against any indemnified party and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such lawsuit, claim or proceeding, indemnified party and, after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of such lawsuitinvestigation, claim except that if the indemnified party has been advised by counsel in writing that there are one or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory more defenses available to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of which are different from or additional to those available to the indemnifying party to assume party, then the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear that event the reasonable fees, costs fees and expenses of such separate counsel (and for the indemnified party shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen be paid by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interestparty; (ii) the defendants inprovided, or targets ofhowever, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to if the indemnifying party is the Company, the Company shall only be obligated to pay the reasonable fees and expenses of a single law firm (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf and any reasonably necessary local counsel) employed by all of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceedingparties. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld)written consent, but if settled with such consentconsent or if there be a final judgment for the plaintiff, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees settlement or judgment.
(d) In order to notify Maxim promptly, provide for just and equitable contribution in circumstances under which the indemnity provided for in this Section 6 is for any reason judicially determined (by the entry of a final judgment or cause Maxim decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the right of appeal) to be notified promptlyunenforceable by the indemnified parties although applicable in accordance with its terms, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any on the one hand and the Underwriters on the other shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the foregoing within nature contemplated by such indemnity incurred by the meaning of Section 20(a) Company, and one or more of the Exchange ActUnderwriters, arising out as incurred, in such proportions that (a) the Underwriters are responsible pro rata for that portion represented by the percentage that the underwriting discount appearing on the cover page of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from Prospectus bears to the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliatespublic offering price (before deducting expenses) appearing thereon, and any officer(b) the Company is responsible for the balance, directorprovided, employee or agent however, that no person guilty of Maxim, and any Person controlling fraudulent misrepresentations (within the meaning of Section 20(a11(f) of the Exchange Act▇▇▇▇ ▇▇▇) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed entitled to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or person who was not guilty of such fraudulent misrepresentation; provided, further, that if the allocation provided above is insufficient to hold harmless a party indemnified thereundernot permitted by applicable law, the Company, on the one hand, and Maxim, the Underwriters on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, losses in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative Relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, on the one hand or Maxim (which consists solely and exclusively of by the Dealer-Manager Information) Underwriters on the other hand and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f6(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this SectionSection 6(d). The aggregate amount paid or payable by a party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in this Section 11 shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against such action or claim. Notwithstanding the provisions of this Section 6(d), no Underwriter shall be required to contribute any litigation, or amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any investigation or proceeding damages which such Underwriter has otherwise been required to pay by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of The Underwriters' obligations in this Section 11: (i6(d) the Dealer-Manager shall be required to contribute any amount are several in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering proportion to their respective underwriting obligations and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentationjoint. For purposes of this Section 116(d), each Person controlling a Dealer-Manager person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange 1933 Act shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Persondirector or officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Underwriting Agreement (Compudyne Corp), Underwriting Agreement (Compudyne Corp)
Indemnification and Contribution. (a) The Company agrees to Seller and UACC shall, jointly and severally, indemnify and hold harmless the Underwriter, the directors, officers, employees and indemnify Maxim agents of the Underwriter and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Securities Act or Section 20 of the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which the Underwriter or such controlling person may become subject under the Securities Act or otherwise, to the extent such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the Seller or UACC in Section 2 hereof,
(ii) any untrue statement or alleged untrue statement of any material fact contained or incorporated in the Registration Statement, the Issuer Information or the Prospectus or any amendment or supplement thereto, or
(iii) the omission or alleged omission to state in the Registration Statement, the Issuer Information or the Prospectus or any amendment or supplement thereto a material fact required to be stated therein or necessary to make the statements therein, not misleading, and will reimburse, as incurred, each such indemnified party for any legal or other costs or expenses reasonably incurred by it in connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; provided, however, that the Seller and UACC will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Issuer Information or the Prospectus or any amendment or supplement thereto in the Underwriter’s Information; provided, further, that the Seller and UACC shall not be liable to the Underwriter or any of the directors, officers, employees and agents of the Underwriter and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect to any loss, claim, damage or liability that results from the fact that the Underwriter sold Notes to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, if delivery thereof was required, a copy of the Prospectus or the Prospectus as then amended or supplemented, whichever is most recent, if the Seller has previously furnished copies thereof to the Underwriter within a reasonable time period prior to such confirmation. The indemnity provided for in this Section 10 shall be in addition to any liability which the Seller and UACC may otherwise have. The Seller and UACC will not, without the prior written consent of the Underwriter, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (as incurred whether or sufferednot the Underwriter or any person who controls the Underwriter is a party to such claim, action, suit or proceeding), unless such settlement, compromise or consent (i) includes an unconditional release of the Underwriter and such controlling persons from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or admission of, fault, culpability or a failure to act by or on behalf of any Underwriter or controlling person.
(b) The Underwriter will indemnify and hold harmless each of the Seller and UACC, each of its directors and officers and each person, if any, who controls the Seller or UACC within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Seller, UACC or any such director, officer or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: upon (i) any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Preliminary Prospectus, any Free Writing Prospectus or the Prospectus Supplement (or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or the alleged omission to state in the Preliminary Prospectus, any Offer Documents, Free Writing Prospectus or in the Prospectus Supplement (or any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any supplement thereto) a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Underwriter’s Information, and shall reimburse the Company and any such directorwill reimburse, officer or controlling Person for as incurred, any legal or other expenses reasonably incurred by the Company Seller, UACC or any such director, officer or controlling Person person in connection with investigating investigating, defending against or defending or preparing to defend against appearing as a third-party witness in connection with any such loss, claim, damage, liability or any action as such expenses in respect thereof. The remedies provided for in this Section 10 are incurrednot exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(c) If In case any lawsuitproceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to paragraph (a) or (b) of this Section 10, claim or proceeding such person (for purposes of this paragraph (c), the “indemnified party”) shall, promptly after receipt by such party of notice of the commencement of such action, notify the person against whom such indemnity may be sought (for purposes of this paragraph (c), the “indemnifying party”), but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party under this Section 10. In case any such action is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11party, such indemnified party shall promptly notify and it notifies the indemnifying party of the commencement of thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such lawsuit, claim or proceedingindemnified party (which may be counsel to such indemnifying party if otherwise reasonably acceptable to the indemnified party); provided, however, that if the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced defendants in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case party, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party); (iii) party or parties. After notice from the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in party of its election so to assume the exercise defense of any such indemnified party’s reasonable judgment, to represent action and approval by such indemnified party within a reasonable time after notice of the institution of any counsel appointed to defend such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consentaction, the indemnifying party agrees, subject will not be liable to the provisions of such indemnified party under this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, 10 for any legal or other expenses reasonably expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with investigatingthe defense thereof, preparing unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to defend the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel in each applicable local jurisdiction) in any one action or defending any separate but substantially similar actions arising out of the same general allegations or circumstances, designated in writing by the Underwriter in the case of paragraph (a) of this Section 10, representing the indemnified parties under such paragraph (a) who are parties to such action or claimactions), (ii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party, (iii) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest or (iv) the indemnifying party has elected to assume the defense of such proceeding but has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified parties. All fees and expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they are incurred. After such notice from the indemnifying party to such indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the consent of the indemnifying party. No indemnifying party shall, without the 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 a party and indemnification could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(ed) The foregoing rights to indemnification and contribution shall be In circumstances in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution indemnity agreement provided for under in the Engagement Letter.
preceding paragraphs of this Section 10 is unavailable or insufficient, for any reason, to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (f) In or actions in respect thereof), each indemnifying party, in order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, just and Maxim, on the other handequitable contribution, shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred or actions in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect (i) the relative benefits received by the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, from the Rights Offering or, offering of Notes or (ii) if such the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportions as are appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, in connection with the statements or omissions which or alleged statements or omissions that resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Seller and UACC on the one hand, hand and Maxim, the Underwriter on the other hand, shall be deemed to be in the same proportion as: (x) as the total proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Notes (before deducting expenses) received by the Company bears to Seller and UACC (y) including for such purpose, the fees value of the Dealer-Manager Certificates) bear to the total discounts and commissions received by the Underwriter (the “Spread”) as set forth in Section 6 hereof actually received by the Dealer-ManagerProspectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Seller, UACC or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and Underwriter, the parties’ relative intentintents, knowledge, access to information and opportunity to correct or prevent such statement or omission, and any other equitable considerations appropriate in the circumstances. The Company Seller, UACC and the Dealer-Manager Underwriter agree that it would not be just and equitable if the amount of such contribution pursuant to this Section 11(f) were determined by pro rata or per capita allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Sectionparagraph (d). The Notwithstanding any other provision of this paragraph (d), the Underwriter shall not be obligated to make contributions hereunder that in the aggregate exceed the amount by which the Spread received by it in the initial offering of such Notes, less the aggregate amount of losses, liabilities, claims, any damages and expenses incurred by an indemnified party and referred that the Underwriter has otherwise been required to above pay in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, respect of the same or any investigation or proceeding by any judicialsubstantially similar claim, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f11 (f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11paragraph (d), each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and each officer director, officer, employee and agent of the Company who shall have signed the Registration Statement and each director of the Company Underwriter shall have the same rights to contribution as the CompanyUnderwriter, subject in and each case to clauses (i) and (ii) director of the immediately preceding sentence. Any party entitled Seller and UACC, each officer of the Seller and UACC and each person, if any, who controls the Seller and UACC within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, shall have the same rights to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but as the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseSeller and UACC.
Appears in 2 contracts
Sources: Underwriting Agreement (UPFC Auto Receivables Trust 2006-A), Underwriting Agreement (UPFC Auto Receivables Trust 2006-B)
Indemnification and Contribution. (a) The Company agrees to hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless each Holder of the Company, its officers, directors and employeesRegistrable Securities covered by a registration, each of its directors and each Personother person, if any, who controls the Company such Holder within the meaning of the Securities Act, with respect to which such registration, qualification or compliance that has been effected pursuant to Section 2 hereof, and each underwriter, if any, and each person who controls any underwriter of the Registrable Securities held by or issuable to such Holder from and against any lossall claims, claimlosses, damage expenses, damages and liabilities (or liability, joint or several, or any action actions in respect thereof, to which the Company thereto) arising out of or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: upon (i) any untrue statement (or alleged untrue statement statement) of a material fact contained (A) in any Offer Documentsprospectus, offering circular or in other document (including any related registration statement, notification or the like) incident to any such amendment registration, qualification or supplementcompliance, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission (or alleged omission omission) to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but or (iii) any violation by the Company of any rule or regulation promulgated under the Securities Act or any state securities law applicable to the Company and relating to action or inaction required by the Company in connection with any such registration, qualification or compliance, and will reimburse each such Holder, each of its officers, directors, manager, members and partners, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any reasonable legal and other expenses reasonably incurred by it in connection with investigating, defending or settling any such claim, loss, damage, liability or action; provided, however, that the indemnity agreement contained in this Section 2.5 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), and provided, further, that the Company will not be liable in any such case solely if and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon the Company?s reliance on an untrue statement or alleged untrue statement or omission or alleged omission was so made in conformity with information furnished by any such Holder, any such underwriter or any such controlling person in writing specifically for use in such registration statement or prospectus and the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability (or action in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission in such registration statement, which untrue statement or alleged untrue statement or omission or alleged omission is completely corrected in an amendment or supplement to the registration statement and the undersigned indemnitees thereafter fail to deliver or cause to be delivered such registration statement as so amended or supplemented prior to or concurrently with the sale of the Registrable Securities to the person asserting such loss, claim, damage or liability (or actions in respect thereof) or expense after the Company has furnished the undersigned with the same.
(b) Each Holder of Registrable Securities covered by a registration statement shall, severally and not jointly, indemnify and hold harmless the Company, each of its directors and officers, each underwriter, if any, of the Company?s securities covered by such a registration statement, each person who controls the Company within the meaning of the Securities Act, and each other such Holder, each of its officers, directors, managers, members and partners and each person controlling such other Holder, against all claims, losses, expenses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company, such other Holders, such directors, officers, mangers, members, partners, persons or underwriters for any reasonable legal or any other expenses incurred in connection with investigating, defending or settling any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information furnished to the Company and by an instrument duly executed by such Holder specifically for use therein; provided, however, the total amount for which any Holder shall be liable under this Section 2.5(b) shall not in any event exceed the aggregate proceeds received by such director, officer or controlling Person for any legal or other expenses reasonably incurred Holder from the sale of Registrable Securities held by the Company or any such director, officer or controlling Person Holder in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredregistration.
(c) If Each party entitled to indemnification under Section 2.5 hereof (the ?Indemnified Party?) shall give notice to the party required to provide indemnification (the ?Indemnifying Party?) promptly after such Indemnified Party has actual knowledge of any lawsuit, claim or proceeding is brought against any indemnified party in respect of as to which indemnification indemnity may be sought against sought, and shall permit the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, Indemnifying Party to assume the defense of any such lawsuit, claim or proceeding with counsel of its choice at its expense; any litigation resulting there from, provided, howeverthat counsel for the Indemnifying Party, that such counsel who shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume conduct the defense of such lawsuit, claim or proceedinglitigation, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen be approved by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; Indemnified Party (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party whose approval shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with and the Indemnified Party may participate in such consentdefense at such party?s expense, and provided, further, that the indemnifying party agreesfailure of any Indemnified Party to give notice as provided herein, subject shall not relieve the Indemnifying Party of its obligations hereunder, unless such failure resulted in actual detriment to the provisions of this Section 11Indemnifying Party. No Indemnifying Party, to indemnify in the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion defense of any lawsuit, such claim or proceeding against litigation, shall, except with the Companyconsent of each Indemnified Party, consent to entry of any of its officers judgment or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a lawsuit, release from all liability in respect to such claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximlitigation.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any Holder of Registrable Securities exercising rights under this Agreement, or any controlling person of any such holder, makes a claim for indemnification pursuant to Section 2.5 hereof but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that Section 2.5 hereof provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any such selling Holder or any such controlling person in circumstances for which indemnification is provided under Section 2.5 hereof; then, and in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereundereach such case, the Company, on the one hand, Company and Maxim, on the other hand, shall such Holder will contribute to the aggregate losses, claims, damages, damages or liabilities and expenses to which they may be subject (after contribution from others) in such proportion so that such Holder is responsible for the portion represented by the percentage that the public offering price of its Registrable Securities offered by the nature contemplated registration statement bears to the public offering price of all securities offered by such indemnification provision (including any investigation, legal and other expenses incurred in connection withregistration statement, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Personsis responsible for the remaining portion; provided, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subjectthat, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: case, (iA) the Dealer-Manager shall no such Holder will be required to contribute any amount in excess of the fees actually received public offering price of all such Registrable Securities offered by the Dealer-Manager from the Company in connection with the Rights Offering it pursuant to such registration statement and (iiB) no Person person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person person or entity who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (AMBER Ready, Inc), Registration Rights Agreement (AMBER Ready, Inc)
Indemnification and Contribution. (a) The Company agrees Indemnification by the Company. Whenever, pursuant to hold harmless and indemnify Maxim and its affiliates and any officerSection 3, director, employee or agent of Maxim or any such affiliates and any Person controlling (within a Registration Statement relating to the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, Registrable Securities is filed under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. HoweverAct, the Company will not be obligated (except as to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment matters covered by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(bSection 7(b) The Dealer-Manager shall hereof) indemnify and hold harmless each Participant in the Companyregistration, its each of their officers, directors and employees, each underwriter of its directors Registrable Securities, and each Person, if any, who controls any such Person (collectively, the Company within the meaning of the Securities Act"Participant Indemnitees" and, from and individually, a "Participant Indemnitee"), against any losslosses, claimclaims, damage damages or liabilityliabilities, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person Participant Indemnitees may become subject, subject under the Securities Act or otherwise, insofar as such losslosses, claimclaims, damage, liability damages or action arises liabilities (or actions in respect thereof) arise out of, of or is are based upon: (i) upon any untrue statement or alleged untrue statement of a any material fact contained (A) in any Offer Documentssuch Registration Statement, or in Prospectus contained therein, or any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering arise out of or (B) in any Blue Sky Application; or (ii) are based upon the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue unless any such statement or omission is based on written information provided by the Participant Indemnitee, or alleged omission was made a representation of a Participant Indemnitee, that such Participant Indemnitee has requested be included in reliance upon and in conformity with the Dealer-Manager Informationsuch Registration Statement or Prospectus, and shall will reimburse the Company and any such director, officer or controlling Person each Participant Indemnitee for any all legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person it in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredaction.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (LCS Golf Inc), Registration Rights Agreement (LCS Golf Inc)
Indemnification and Contribution. (a) The Issuers (other than the Company) jointly and severally agree, and the Company agrees severally agrees, to indemnify and hold harmless each Initial Purchaser, the directors, officers, employees and indemnify Maxim agents of each Initial Purchaser and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Initial Purchaser within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Preliminary Memorandum, the Final Memorandum (or in any supplement or amendment thereto) or any information provided by any Issuer to any holder or prospective purchaser of Securities pursuant to Section 5(h), or in any amendment thereof or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (includingagrees to reimburse each such indemnified party, but not limited toas incurred, for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of them in connection with investigating or defending any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out ofaction; provided, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentshowever, or that the Issuers will not be liable in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made in the Preliminary Memorandum or the Final Memorandum, or in any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationIssuers by or on behalf of any Initial Purchaser specifically for inclusion therein; provided, and further, that with respect to any untrue statement or omission of material fact made in the Preliminary Memorandum, the indemnity agreement contained in this Section 8(a) shall reimburse not inure to the Company and benefit of any Initial Purchaser from whom such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against person asserting any such loss, claim, damagedamage or liability purchased the Securities concerned, to the extent that any such loss, claim, damage or liability of such Initial Purchaser occurs under the circumstance where (i) the Company had previously furnished copies of the Final Memorandum on a timely basis to the Initial Purchasers, (ii) delivery of the Final Memorandum was required by the Act to be made to such person, (iii) the untrue statement or action omission of a material fact contained in the Preliminary Memorandum was corrected in the Final Memorandum and (iv) there was not sent or given to such person, at or prior to the written confirmation of the sale of such Securities to such person, a copy of the Final Memorandum. This indemnity agreement will be in addition to any liability which the Issuers may otherwise have.
(b) Each Initial Purchaser severally and not jointly, agrees to indemnify and hold harmless each Issuer, each of its directors, each of its officers, and each person who controls an Issuer within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Issuers to each Initial Purchaser, but only with reference to written information relating to such expenses are incurredInitial Purchaser furnished to the Issuers by or on behalf of such Initial Purchaser specifically for inclusion in the Preliminary Memorandum or the Final Memorandum (or in any amendment or supplement thereto). This indemnity agreement will be in addition to any liability which any Initial Purchaser may otherwise have. The Issuers acknowledge that the statements set forth in the last paragraph of the cover page regarding the delivery of the Securities, the disclosure on page (i) concerning stabilization, syndicate covering transactions and penalty bids and the paragraph related to stabilization, syndicate covering transactions and penalty bids under the heading “Plan of Distribution” in the Preliminary Memorandum and the Final Memorandum, constitute the only information furnished in writing by or on behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum or the Final Memorandum (or in any amendment or supplement thereto).
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in such lawsuit, claim or proceeding, and, after written notice from any action for which indemnification is sought (in which case the indemnifying party to such shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party, to assume the defense of such lawsuit, claim party or proceeding with counsel of its choice at its expenseparties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party’s election of to appoint counsel to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.;
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Crown Holdings Inc)
Indemnification and Contribution. (a) The Each of the Company and the Sponsor agrees to indemnify and hold you harmless and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls you within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates 1933 Act from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereofthereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Designated Notes), to which the Company you or any such director, officer or controlling Person person may become subject, under the Securities 1933 Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Registration Statement, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the (iii) any untrue statement or alleged untrue statement of a material fact contained in the Final Prospectus or (iv) the omission or alleged omission was made to state therein a material fact required to be stated therein or necessary to make the statements therein, in reliance upon and in conformity with the Dealer-Manager Informationlight of the circumstances under which they were made, not misleading and shall reimburse the Company you and any each such director, officer or controlling Person person promptly upon demand for any legal or other expenses reasonably incurred by the Company you or any such director, officer or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company and the Sponsor shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Base Prospectus, the Final Prospectus or the Registration Statement in reliance upon and in conformity with written information (including any Derived Information) furnished to the Company or the Sponsor by you specifically for inclusion therein; and provided, further, that as to any Base Prospectus this indemnity shall not inure to your benefit or the benefit of any controlling person on account of any loss, claim, damage, liability or action arising from the sale of the Designated Notes to any person by you if you failed to send or give a copy of the Final Prospectus, as amended or supplemented, to that person within the time required by the 1933 Act. For purposes of the last proviso to the immediately preceding sentence, the term "Final Prospectus" shall not be deemed to include the documents incorporated therein by reference, and you shall not be obligated to send or give any supplement or amendment to any document incorporated therein by reference to any person other than a person to whom you had delivered such incorporated document or documents in response to a written request therefor. The foregoing indemnity agreement is in addition to any liability which each of the Company and the Sponsor may otherwise have to you or any person who controls you.
(b) You agree to indemnify and hold harmless each of the Company and the Sponsor, each of its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company and the Sponsor within the meaning of Section 15 of the 1933 Act against any and all loss, claim, damage or liability, or any action in respect thereof, to which the Company, the Sponsor or any such director, officer or controlling person may become subject, under the 1933 Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the Final Prospectus or (iv) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company and the Sponsor by or on your behalf specifically for inclusion therein and provided that such written information was not based upon Company-Provided Information, and shall reimburse the Company and the Sponsor and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Company and the Sponsor or any director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which you may otherwise have to each of the Company and the Sponsor or any such director, officer or controlling person.
(c) If any lawsuit, claim or proceeding is brought against Promptly after receipt by any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to under this Section 118 of notice of any claim or the commencement of any action, such indemnified party shall promptly shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the an indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 8 except to the extent that it has been materially prejudiced in any material respect by such failure and in provided, further, that the failure to notify any event indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 118. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; providedaction, however, that such counsel the indemnifying party shall not be satisfactory liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding, such investigation. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense of such lawsuitthereof, claim or proceeding, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay be at the expense of such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) ifindemnified party unless: (i) the use of counsel chosen employment thereof has been specifically authorized by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interestin writing; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by such counsel that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (and in which case the indemnifying party shall not have the right to direct the defense reasonable judgment of such action on behalf of the counsel it is advisable for such indemnified party)party to employ separate counsel; or (iii) the indemnifying party shall not have employed has failed to assume the defense of such action and employ counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgmentwhich case, to represent if such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) notifies the indemnifying party shall authorize such indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not , the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to local counsel) at any time for all such indemnified parties, which firm shall be designated in writing by you, if the indemnified parties under this Section 8 consist of you or any of your controlling persons, or by the Company, if the indemnified parties under this Section 8 consist of the Company, the Sponsor, or any of the Company's directors, officers or controlling persons. Each indemnified party, as a condition of the indemnity agreements contained in Sections 8(a), 8(b) and 8(c) shall use its best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall be liable for any settlement of any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. The .
(d) You agree to deliver to the Company agrees to notify Maxim promptly, or cause Maxim the Sponsor no later than the date on which the Prospectus Supplement is required to be notified promptlyfiled pursuant to Rule 424 with a copy of its Derived Information (defined below) for filing with the Commission on Form 8-K.
(e) You agree, of the assertion of any lawsuitassuming all Company-Provided Information (defined below) is accurate and complete in all material respects, claim or proceeding against to indemnify and hold harmless the Company, any the Sponsor, each of its the Company's and the Sponsor's officers or and directors or any Person and each person who controls any of the foregoing Company and the Sponsor within the meaning of Section 20(a) 15 of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that 1933 Act against any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the all losses, claims, damagesdamages or liabilities, joint or several, to which they may become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or expenses referred to actions in respect thereof) arise out of or are based upon any untrue statement of a material fact contained in the immediately preceding paragraph shall Derived Information provided by you, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be deemed stated therein or necessary to includemake the statements therein, subject in the light of the circumstances under which they were made, not misleading, and agrees to the limitations set forth above, reimburse each such indemnified party for any legal or other expenses reasonably incurred by such indemnified party him, her or it in connection with investigating, investigating or defending or preparing to defend or defending any such loss, claim, damage, liability or action or claim.
(eas such expenses are incurred. Your obligations under this Section 8(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights liability which any indemnified parties you may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letterhave.
(f) In order Each of the Company and the Sponsor agree to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to indemnify and hold harmless a party indemnified thereunderthe Underwriter, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses each of the nature contemplated by such indemnification provision (including any investigation, legal Underwriter's officers and other expenses incurred in connection with, directors and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in each person who controls the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company Underwriter within the meaning of Section 15 of the Securities 1933 Act against any and all losses, claims, damages or liabilities, joint or several, to which they may become subject under the 1933 Act or Section 20 of the Exchange Actotherwise, officers of the Company who signed the Registration Statement and directors of the Company) insofar as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expenses, as well as actions in respect thereof) arise out of or are based upon any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact contained in the Company-Provided Information provided by the Company or the Sponsor, or arise out of or are based upon the omission or alleged omission to state therein a material fact relates required to information supplied by be stated therein or necessary to make the Company or Maxim (which consists solely and exclusively statements therein, in the light of the Dealer-Manager Information) circumstances under which they were made, not misleading, and the parties’ relative intent, knowledge, access agrees to information and opportunity to correct or prevent reimburse each such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include for any legal or other expenses reasonably incurred by such indemnified party in investigatinghim, preparing her or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company it in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) investigating or defending or preparing to defend any such loss, claim, damage, liability or action as such expenses are incurred. Each of the Securities ActCompany's and the Sponsor's obligations under this Section 8(f) shall be entitled in addition to contribution from any Person who was not guilty of such fraudulent misrepresentationliability which they may otherwise have. The procedures set forth in Section 8(c) shall be equally applicable to Sections 8(e) and 8(f).
(g) For purposes of this Section 118, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as term "Derived Information" means such Dealer-Manager, and each Personportion, if any, who controls of the information delivered to the Company within or the meaning of Sponsor by the Underwriter pursuant to Section 15 of 8(e) for filing with the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses Commission on Form 8-K as:
(i) and is not contained in the Final Prospectus without taking into account information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the immediately preceding sentence. Any party entitled to contribution willtype of information defined as Collateral Term Sheets, promptly after receipt of notice of commencement of any action, suit Structural Term Sheets or proceeding against Computational Materials (as such party terms are interpreted in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseNo-Action Letters).
Appears in 2 contracts
Sources: Underwriting Agreement (Headlands Mortgage Securities Inc), Underwriting Agreement (Greenpoint Home Equity Loan Trust 1999 2)
Indemnification and Contribution. (a) The Each of the Company agrees to and the Guarantor will jointly and severally indemnify and hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and each Underwriter against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Registration Statement, the Prospectus, or any amendment or supplement thereto, in or any other solicitation material used by the Company related preliminary prospectus or authorized by it for use in connection with the Rights Offeringpreliminary prospectus supplement, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in each connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that neither the Company nor the Guarantor will be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company and the Guarantor by any Underwriter specifically for use therein; and provided, further, that neither the Company nor the Guarantor shall be liable to any Underwriter under the indemnity agreement in this subsection (a) with respect to any preliminary prospectus or preliminary prospectus supplement to the extent that any such loss, claim, damage or liability of such Underwriter results from the fact that such Underwriter sold designated securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus as then amended or supplemented in any case where such delivery is required by the Act if either the Company or the Guarantor has previously furnished copies thereof to such Underwriter and the loss, claim, damage or liability results from an untrue statement or omission of a material fact contained in the preliminary prospectus which was corrected in the Prospectus (as then amended, supplemented or modified).
(b) Each Underwriter will indemnify and hold harmless the Company and the Guarantor against any losses, claims, damages or liabilities to which either the Company or the Guarantor may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus or preliminary prospectus supplement, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany or the Guarantor by such Underwriter specifically for use therein, and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person the Guarantor in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under subsection (a) or (b) above, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 11subsection (a) or (b) above. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in therein, and to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such lawsuitindemnified party (who shall not, claim or proceedingexcept with the consent of the indemnified party, andbe counsel to the indemnifying party), and after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense of thereof, the indemnifying party will not be liable to such lawsuit, claim indemnified party under this Section for any legal or proceeding with counsel of its choice at its expense; provided, however, that other expenses subsequently incurred by such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceedinginvestigation. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld)written consent, but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The If the indemnification provided for in this Section is unavailable (other than as a result of the provisos contained in subsection (a)) or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal subsection (a) or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(eb) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, above in such proportions proportion as is appropriate to reflect the relative benefits received by fault of the Company, Company and the Guarantor on the one hand, hand and Maxim, of the Underwriters on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The , including relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Managerbenefit. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Guarantor or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company Company, the Guarantor and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Sectionsubsection (d). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions in respect thereof) referred to above in this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The Underwriters' obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of each of the Company and the Guarantor under this Section 11shall be in addition to any liability which it may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager person, if any, who controls any Underwriter within the meaning of Section 15 the Act; and the obligations of the Securities Act or Underwriters under this Section 20 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Exchange Act shall have Company or the same rights Guarantor, to contribution as such Dealer-Manager, each officer of the Company or the Guarantor who has signed the Registration Statement and to each Personperson, if any, who controls the Company or the Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Underwriting Agreement (Newmont Usa LTD), Underwriting Agreement (Newmont Usa LTD)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, or any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, and with respect to such prospectuses in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (includingagrees to reimburse each such indemnified party, but not limited toas incurred, for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of it in connection with investigating or defending any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out ofaction; provided, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentshowever, or that the Company will not be liable in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement, and shall reimburse each person who controls the Company and any such directorwithin the meaning of either the Act or the Exchange Act, officer or controlling Person for any legal or other expenses reasonably incurred by to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with respect to any losses, claims, damages or liabilities that arise out of or are based upon any untrue statements or omission made in written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Securities and, under the heading “Underwriting”, (ii) the list of Underwriters and their respective participation in the sale of the Securities, (iii) the sentences related to concessions and reallowances, (iv) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus and (v) the paragraph, under the heading “Conflicts of interest”, with respect to compliance with Financial Industry Regulatory Authority, Inc. Rule 5121 constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredIssuer Free Writing Prospectus.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise have knowledge of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of any such lawsuit, claim or proceeding with action and appoint counsel (including local counsel) of its the indemnifying party’s choice at its expensethe indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party’s election of to appoint counsel (including local counsel) to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the actual or potential defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); , (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; action or (iv) the indemnifying party shall authorize such the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuitaction) unless such settlement, claim compromise or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions i) includes an unconditional release of this Section 11, to indemnify the each indemnified party from and against any loss, damage or all liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuitsuch claim, claim action, suit or proceeding against it arising out and (ii) does not include a statement as to or an admission of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuitfault, claim culpability or proceeding a failure to act, by or on behalf of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid In the event that the indemnity provided in paragraph (a), (b) or payable by an indemnified party as a result (c) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held 8 is unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderfor any reason, the Company, on Company and the one hand, and Maxim, on the other hand, shall Underwriters severally agree to contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and or other expenses reasonably incurred in connection withwith investigating or defending any loss, and any amount paid in settlement ofclaim, any damage, liability or action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred (collectively “Losses”) to which the Company and Maxim one or more of the Underwriters may be subject, subject in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, by the Underwriters on the other hand, from the Rights Offering oroffering of the Securities; provided, if however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is not permitted by applicable lawunavailable for any reason, the Company and the Underwriters severally shall contribute in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, of the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company, on the one hand, and Maxim, on the other hand, Company shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually it, and benefits received by the Dealer-Manager. The relative fault of Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Company, on the one hand, and Maxim, on the other hand, Final Prospectus. Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied provided by the Company on the one hand or Maxim (which consists solely and exclusively the Underwriters on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionabove. Notwithstanding the provisions of this Section 11: paragraph (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 118, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, Act and each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses the applicable terms and conditions of this paragraph (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwised).
Appears in 2 contracts
Sources: Underwriting Agreement (Wyndham Worldwide Corp), Underwriting Agreement (Wyndham Worldwide Corp)
Indemnification and Contribution. (a) The Company agrees to and the Subsidiaries, jointly and severally, shall indemnify and hold harmless each Underwriter, its officers and indemnify Maxim employees and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of the Exchange Securities Act) Maxim or any of such affiliates , from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and all (A) lossessales of Shares), claimsto which that Underwriter, damages and liabilities whatsoeverofficer, employee or controlling person may become subject, under the Securities Act Act, the Canadian Securities Laws or otherwise (otherwise, insofar as incurred such loss, claim, damage, liability or suffered)action arises out of, arising out of or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Offer Documents Registration Statement or the Prospectus, or in any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Companyii) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a Preliminary Prospectus, the Registration Statement, the Prospectus, or in any amendment or supplement thereto, any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken any act or omitted failure to be taken act or any alleged act or failure to act by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be Underwriter in connection with, or relating in any manner to, the Rights Offering, any of the other transactions contemplated thereby Shares or the performance of Maxim’s services to the Company with respect to the Rights Offeringoffering contemplated hereby, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred which is included as part of or referred to in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant action arising out of or based upon matters covered by clause (i) or (ii) above (provided that the Company and the Subsidiaries shall not be liable in the case of any matter covered by this clause (iii) to the preceding sentence which has been extent that it is determined in a final judgment by a court of competent jurisdiction to have that such loss, claim, damage, liability or action resulted directly from any such act or failure to act undertaken or omitted to be taken by such Underwriter through its gross negligence, contravention of law or willful misconduct misconduct), and shall reimburse each Underwriter and each such officer, employee and controlling person promptly upon demand for any legal or gross negligence on other expenses reasonably incurred by that Underwriter, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the part Company and the Subsidiaries shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, the Prospectus, or in any such amendment or supplement thereto, or in any such amendment or supplement, in reliance upon and in conformity with the written information concerning such Underwriter furnished to the Company by any Underwriter specifically for inclusion therein, which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement is in addition to any indemnified partyliability which the Company or any Subsidiary may otherwise have to any Underwriter or to any officer, employee or controlling person of that Underwriter.
(b) The Dealer-Manager Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, its officers, directors officers and employees, each of its directors directors, and each Personperson, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person person may become subject, under the Securities Act Act, the Canadian Securities Laws, or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer DocumentsPreliminary Prospectus, the Registration Statement, the Prospectus, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; supplement thereto or (ii) the omission or alleged omission to state in any Offer DocumentsPreliminary Prospectus, the Registration Statement or the Prospectus, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Applicationsupplement thereto, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Dealer-Manager InformationCompany through the Underwriters by or on behalf of that Underwriter specifically for inclusion therein and described in Section 8(e), and shall reimburse the Company and any such director, officer or controlling Person person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Company or any such director, officer, employee or controlling person.
(c) If Promptly after receipt by an indemnified party under this Section 8 of notice of any lawsuit, claim or proceeding is brought against the commencement of any action, the indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 8 except to the extent that it has been materially prejudiced in any material respect by such failure and in any event and, provided further, that the failure to notify the indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such an indemnified party otherwise than under this Section 118. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with counsel the defense thereof other than reasonable costs of its choice at its expenseinvestigation; provided, however, that the Underwriters shall have the right to employ counsel to represent jointly the Underwriters and their respective officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Underwriters against the Company or any Subsidiary under this Section 8 if, in the reasonable judgment of the Underwriters, it is advisable for the Underwriters to be represented by separate counsel, and in that event the fees and expenses of such separate counsel shall be satisfactory to paid by the indemnified party in Company or the exercise of its reasonable judgmentSubsidiaries. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense of such lawsuit, claim or proceeding, and thereof but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay be at the expense of such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: indemnified party unless (i) the use of counsel chosen employment thereof has been specifically authorized by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; in writing, (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by such counsel that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (and in which case the indemnifying party shall not have the right to direct the defense reasonable judgment of such action on behalf of the counsel it is advisable for such indemnified party); party to employ separate counsel or (iii) the indemnifying party shall not have employed has failed to assume the defense of such action and employ counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgmentwhich case, to represent if such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) notifies the indemnifying party shall authorize such indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party (but for clarification, will continue to have the right to employ counsel to assume the defense for such action, on its own behalf), it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such indemnified parties, which firm shall be designated in writing by the Underwriters, if the indemnified parties under this Section 8 consist of any Underwriter or any of their respective officers, employees or controlling persons, or by the Company, if the indemnified parties under this Section 8 consist of the Company or any of the Company’s directors, officers, employees or controlling persons. The foregoing No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. The indemnifying party shall not , or (ii) be liable for any settlement of any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with the written consent of the indemnifying party or if there be a final judgment of the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees to notify Maxim promptly, settlement or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximjudgment.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 8 shall for any reason held to be unavailable from any indemnifying party to or is insufficient to hold harmless a an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified thereunderparty, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated amount paid or payable by such indemnification provision indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyi) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is shall be appropriate to reflect the relative benefits received by the Company, Company and the Subsidiaries on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering of the Shares or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company and the Subsidiaries on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damagesdamage or liability, liabilities or expensesaction in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company and the Subsidiaries on the one hand, hand and Maxim, the Underwriters on the other hand, with respect to such offering shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Shares purchased under this Agreement (before deducting expenses) received by the Company bears to (y) and the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the CompanySubsidiaries, on the one hand, and Maximthe total underwriting discounts and commissions received by the Underwriters with respect to the Shares purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the Shares under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Subsidiaries or Maxim (which consists solely and exclusively the Underwriters, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. For purposes of the preceding two sentences, the net proceeds deemed to be received by the Company shall be deemed to be also for the benefit of the Subsidiaries and information supplied by the Company shall also be deemed to have been supplied by the Subsidiaries. The Company Company, the Subsidiaries and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Sectionherein. The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 11 8(d) shall be deemed to include include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such action or claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public was offered to the public exceeds the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f8(e) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of The Underwriters’ obligations to contribute as provided in this Section 11, each Person controlling a Dealer-Manager within 8(d) are several in proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the meaning of Section 15 Company acknowledges that the statements with respect to the public offering of the Securities Act Shares by the Underwriters set forth on the cover page of, the legend concerning over-allotments on the inside front cover page of and the concession and reallowance figures appearing under the caption “Underwriting” in the Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to the Company by or Section 20 on behalf of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed Underwriters specifically for inclusion in the Registration Statement and each director of Statement, the Company shall have the same rights to contribution as the CompanyProspectus, subject or in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit amendment or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwisesupplement thereto.
Appears in 2 contracts
Sources: Underwriting Agreement (Sierra Wireless Inc), Underwriting Agreement (Sierra Wireless Inc)
Indemnification and Contribution. (a) The Company Each Issuer, jointly and severally, agrees to indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Securities Act or Section 20 of the Exchange Act) Maxim or any of such Act and their agents and affiliates from and against any and all (A) losses, claims, damages and or liabilities whatsoeverto which any Underwriter or such controlling person, agent or affiliate may become subject under the Securities Act, the Exchange Act or otherwise otherwise, insofar as any such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: :
(i) any untrue statement or alleged untrue statement of any material fact contained in the Preliminary Prospectus, any other Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto;
(ii) the omission or alleged omission to state, in the Preliminary Prospectus, any other Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading; or
(iii) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement or caused by any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in not misleading, and will reimburse, as incurred, the light of the circumstances under which they were madeUnderwriters and each such controlling person, not misleading (agent or affiliate for any legal or other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination expenses incurred by the Company ofUnderwriters or such controlling person, agent or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred affiliate in connection with investigating, preparing to defend defending against or defending appearing as a third-party witness in connection with any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any such loss, claim, damage, liability or expense pursuant action; provided, however, the Issuers will not be liable in any such case to the preceding sentence which has been determined extent that any such loss, claim, damage, or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in a final judgment the Registration Statement, the Preliminary Prospectus, any other Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information concerning the Underwriters furnished to the Issuers by a court of competent jurisdiction the Underwriters through the Representatives specifically for use therein. The indemnity provided for in this Section 9 will be in addition to any liability that any Issuer may otherwise have resulted directly from willful misconduct or gross negligence to the indemnified parties. Nothing in this Section 9(a) shall be deemed to impose on the part of Underwriters any indemnified partyinformational delivery obligations in addition to those arising under applicable law.
(b) The Dealer-Manager shall Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the CompanyIssuers, its officerstheir directors, directors and employees, each of its directors their officers and each Personperson, if any, who controls the Company any Issuer within the meaning of Section 15 of the Securities Act, from and Act against any losslosses, claimclaims, damage damages or liability, joint or several, or any action in respect thereof, liabilities to which the Company any Issuer or any such director, officer or controlling Person person may become subject, subject under the Securities Act or otherwise, insofar as such losslosses, claimclaims, damage, liability damages or action arises liabilities (or actions in respect thereof) arise out of, of or is are based upon: upon (i) any untrue statement or alleged untrue statement of a any material fact contained (A) in the Preliminary Prospectus, any Offer Documentsother Time of Sale Information, any Issuer Free Writing Prospectus or in the Prospectus or any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; supplement thereto or (ii) the omission or the alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein in the Preliminary Prospectus, any other Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto, or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information concerning such Underwriter furnished to the Company by or on behalf of such Underwriter specifically for use therein; and any such directorsubject to the limitation set forth immediately preceding this clause, officer or controlling Person for will reimburse, as incurred, any legal or other expenses reasonably incurred by the Company any Issuer or any such director, officer or controlling Person person in connection with investigating or defending against or preparing to defend against appearing as a third party witness in connection with any such loss, claim, damage, liability or action as such expenses are incurredin respect thereof. The indemnity provided for in this Section 9 will be in addition to any liability that the Underwriters may otherwise have to the indemnified parties.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 10 of notice of the commencement of any action for which such indemnified party is entitled to indemnification under this Section 9, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 119, such indemnified party shall promptly notify the indemnifying party of the commencement thereof in writing; but the omission to so notify the indemnifying party (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraphs (a) and (b) above. In case any such lawsuitaction is brought against any indemnified party, claim or proceedingand it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it or to and/or other indemnified parties which that are different from or in addition additional to those available to the indemnifying party or (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after receipt by the indemnifying party of notice of the institution of such action, then, in which case each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 9 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party); party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (iii) it being understood, however, that in connection with such action the indemnifying party shall not have employed be liable for the expenses of more than one separate counsel satisfactory (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Representatives in the case of paragraph (a) of this Section 9 or the relevant Issuer(s) in the case of paragraph (b) of this Section 9, representing the indemnified parties under such paragraph (a) or paragraph (b), as the case may be, who are parties to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim action or proceeding; actions) or (ivii) the indemnifying party shall authorize such has authorized in writing the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments All fees and expenses reimbursed pursuant to this paragraph (c) shall apply whether or not be reimbursed as they are incurred. After such notice from the indemnified party is a formal indemnifying party to any such lawsuitindemnified party, claim or proceeding. The the indemnifying party shall will not be liable for the costs and expenses of any settlement of any lawsuit, claim or proceeding such action effected by such indemnified party without its the prior written consent of the indemnifying party (which consent will shall not be unreasonably withheld), but if settled with unless such consent, the indemnifying indemnified party agrees, subject to the provisions of waived in writing its rights under this Section 119, to indemnify in which case the indemnified party from and against any lossmay effect such a settlement without such consent. Notwithstanding the foregoing, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to no indemnifying party shall be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of liable under this Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that 9 for any settlement of a lawsuit, any claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from action effected without its prior written consent. No indemnifying party shall, without the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) prior written consent of the Exchange Act) Maximindemnified party, effect any settlement or compromise of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party, or indemnity could have been sought hereunder by such party, unless such settlement does not include any statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party.
(d) The In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 9 is unavailable to, or insufficient to hold harmless, an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), each indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by an such indemnified party as a result of the such losses, claims, damages, damages or liabilities (or expenses referred to actions in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(erespect thereof) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect (i) the relative benefits received by the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, from the Rights Offering or, offering of the Notes or (ii) if such the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportions as are appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, in connection with the statements or omissions which or alleged statements or omissions that resulted in such losses, claims, damages, damages or liabilities (or expenses, as well as any other relevant equitable considerationsactions in respect thereof). The relative benefits received by the Company, Issuers on the one hand, hand and Maxim, any Underwriter on the other hand, shall be deemed to be in the same proportion as: (x) as the total proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total discounts and commissions received by the Dealer-Managersuch Underwriter. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Issuers, on the one hand, or Maxim (which consists solely and exclusively of such Underwriter, on the Dealer-Manager Information) and other, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or alleged statement or omission, and any other equitable considerations appropriate in the circumstances. The Company Issuers and the Dealer-Manager Underwriters agree that it would not be just and equitable if the amount of such contribution pursuant to this Section 11(f) were determined by pro rata or per capita allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this Sectionparagraph (d). The Notwithstanding any other provision of this paragraph (d), no Underwriter shall be obligated to make contributions hereunder that in the aggregate exceed the total discounts, commissions and other compensation received by such Underwriter under this Agreement, less the aggregate amount of losses, liabilities, claims, any damages and expenses incurred that such Underwriter has otherwise been required to pay by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such reason of the untrue or alleged untrue statement statements or omission the omissions or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required omissions to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering state a material fact, and (ii) no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11paragraph (d), each Person controlling a Dealer-Manager person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or shall have the same rights to contribution as the Underwriters, and each director of any Issuer, each officer of any Issuer and each person, if any, who controls any Issuer within the meaning of Section 20 15 of the Exchange Securities Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights Issuer. The Underwriters’ obligations to contribution as the Company, subject in each case contribute pursuant to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f9(d) or otherwiseare several in proportion to their respective purchase obligations and not joint.
Appears in 2 contracts
Sources: Underwriting Agreement (Directv), Underwriting Agreement (Directv)
Indemnification and Contribution. (a) The Company agrees to shall indemnify and hold harmless each Underwriter, and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls each Underwriter within the meaning of Section 20(a) of the Act and the Exchange Act) Maxim or any of such affiliates from and , against any and all (A) lossesloss, claimsliability, damages claim, damage and liabilities expense whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) expenses incurred in connection with investigating, preparing to defend or defending against any lawsuit, claim or other proceedinglitigation, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action claim whatsoever or in respect thereof, to which the Company connection with any investigation or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out inquiry of, or is action or proceeding that may be brought against, the respective indemnified parties, arising out of or based upon: (i) upon any breach of the representations and warranties of the Company made in this Agreement or any untrue statement statements or alleged untrue statement statements of a material fact contained (A) in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any Offer Documentsjurisdiction in order to qualify all or any part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in from any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by of the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any foregoing of a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they are made, not misleading; provided, but in each case solely and exclusively to the extent however, that the untrue statement or alleged untrue foregoing indemnity shall not apply in respect of any statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by such Underwriter expressly for use in any Preliminary Prospectus, the Registration Statement or Prospectus, or any amendment or supplement thereto, or in any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of such Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of such Underwriter to the person asserting any losses, claims, damages or liabilities, and shall reimburse if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of the Company under this Section 10(a) will be in addition to any liability the Company may otherwise have. The indemnification obligations of the Company and each of the Selling Shareholders shall be several and not joint.
(b) The Trust shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act against any such directorand all loss, officer liability, claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or controlling Person for defending against any legal litigation, commenced or other expenses reasonably incurred by the Company threatened, or any such director, officer claim whatsoever or controlling Person in connection with investigating any investigation or defending inquiry of, or preparing action or proceeding that may be brought against, the respective indemnified parties, arising out of or based upon any breach of the representations and warranties of the Trust made in this Agreement or any untrue statements or alleged untrue statements of material fact contained in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any jurisdiction in order to defend against qualify all or any such part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or the omission or alleged omission from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, but only with respect to any and all loss, liability, claim, damagedamage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to each Underwriter by the Trust expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of the Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of the Underwriter to the person asserting any losses, claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of the Trust under this Section 10(b) will be in addition to any liability or action as such expenses are incurredthe Trust may otherwise have. The indemnification obligations of the Company and each of the Selling Shareholders shall be several and not joint.
(c) ▇▇▇▇▇ shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act against any and all loss, liability, claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever or in connection with any investigation or inquiry of, or action or proceeding that may be brought against, the respective indemnified parties, arising out of or based upon any breach of the representations and warranties of ▇▇▇▇▇ made in this Agreement or any untrue statements or alleged untrue statements of material fact contained in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any jurisdiction in order to qualify all or any part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or the omission or alleged omission from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to each Underwriter by ▇▇▇▇▇ expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of the Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of the Underwriter to the person asserting any losses, claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of ▇▇▇▇▇ under this Section 10(b) will be in addition to any liability ▇▇▇▇▇ may otherwise have. The indemnification obligations of the Company and each of the Selling Shareholders shall be several and not joint.
(d) Each Underwriter severally and not jointly shall indemnify and hold harmless the Company, the Selling Shareholders, each of the directors of the Company, each of the officers of the Company who shall have signed the Registration Statement, and each other person, if any, who controls the Company or the Selling Shareholders within the meaning of the Act and the Exchange Act, to the same extent as the foregoing indemnities from the Company and the Selling Shareholders to the Underwriters, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to the Company and the Selling Shareholders by any Underwriter through the Representative expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be. The obligations of each Underwriter under this Section 10 will be in addition to any liability which such Underwriter may otherwise have.
(e) If any lawsuitaction, claim inquiry, investigation or proceeding is brought against any indemnified party person in respect of which indemnification may be sought pursuant to Section 10(a), (b), (c) or (d) hereof, such person (hereinafter called the “indemnified party”) shall, promptly after notification of, or receipt of service of process for, such action, inquiry, investigation or proceeding, notify in writing the party or parties against whom indemnification is to be sought (hereinafter called the “indemnifying party”) of the institution of such action, inquiry, investigation or proceeding. The indemnifying party, upon the request of the indemnified party, shall assume the defense of such action, inquiry, investigation or proceeding, including, without limitation, the employment of counsel (reasonably satisfactory to such indemnified party) and payment of expenses. No indemnification provided for in this Section 10 shall be available to any indemnified party who shall fail to give such notice if the indemnifying party pursuant does not have knowledge of such action, inquiry, investigation or proceeding to this Section 11, the extent that such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that has been materially prejudiced by the failure to give such notice, but the omission to so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 1110. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such Such indemnified party shall have the right to employ separate its or their own counsel in any such case, but the fees and to participate expenses of such counsel shall be at the expense of such indemnified party unless the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such lawsuit, claim action or proceeding, and if the indemnifying party shall bear not have, within a reasonable period of time in light of the reasonable feescircumstances, costs and expenses employed counsel reasonably satisfactory to the indemnified party, to have charge of the defense of such separate action, inquiry, investigation or proceeding or if such indemnified party or parties shall have been advised by counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt that there may be a conflict between the positions of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such or parties and of the indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim parties or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it such indemnified party or to other indemnified parties which are different from or in addition to those available to the indemnifying party (or parties, in any of which case events the indemnifying indemnified party or parties shall not have the right be entitled to direct select counsel to conduct the defense of to the extent determined by such action on behalf counsel to be necessary to protect the interests of the indemnified party); (iii) party or parties, and the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise reasonable fees and expenses of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party counsel shall authorize such indemnified party to employ separate counsel at the expense of be borne by the indemnifying party. The foregoing indemnification commitments indemnifying party shall apply whether or not be responsible for the fees and disbursements of only one such counsel so engaged by the indemnified party or parties as a group. Expenses covered by the indemnification in this Section 10 shall be paid by the indemnifying party promptly after written request is submitted by the indemnified party. In the event that it is determined that the indemnified party was not entitled to receive payments for expenses pursuant to this Section 10, the indemnified party shall return all sums that have been paid pursuant hereto. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a formal party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action. Anything in this Section 10 to any such lawsuit, claim or proceeding. The the contrary notwithstanding an indemnifying party shall not be liable for any settlement of any lawsuit, a claim or proceeding effected affected without its consent (written consent, which consent will shall not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held to be 10 is unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderunder Section 10(a), (b), (c) or (d) hereof in respect of any losses, liabilities, claims, damages or expenses (or actions, inquiries, investigations or proceedings in respect thereof) referred to therein, except by reason of the Companyfailure to give notice as required in Section 10(e) hereof (provided that the indemnifying party does not have knowledge of the action, on inquiry, investigation or proceeding and to the one handextent such party has been materially prejudiced by the failure to give such notice), and Maxim, on the other hand, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, liabilities, claims, damagesdamages or expenses (or actions, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigationinquiries, legal and other expenses incurred investigations or proceedings in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, on the one handSelling Shareholders, and Maxim, on the other hand, Underwriters from the Rights Offering oroffering of the Shares. If, if such however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, on the one handSelling Shareholders, and Maxim, on the other hand, Underwriters in connection with the statements or omissions which resulted in such losses, claimsliabilities, damagesclaims or expenses (or actions, liabilities inquiries, investigations or expensesproceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, on Company and the one hand, and Maxim, on the other hand, Selling Shareholders shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually them, respectively, and benefits received by the Dealer-ManagerUnderwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Shareholders, or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, the Selling Shareholders, and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant contributions to this Section 11(f10(f) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this SectionSection 10(f). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and or expenses incurred by an indemnified party and (or actions, inquiries, investigations or proceedings in respect thereof) referred to above in this Section 11 10(f) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.suc
Appears in 2 contracts
Sources: Underwriting Agreement (Osborne Richard M), Underwriting Agreement (Gas Natural Inc.)
Indemnification and Contribution. (a) The Company agrees Issuers agree jointly and severally, to indemnify and hold harmless each Holder of Registrable Securities and indemnify Maxim each Participating Broker-Dealer selling Exchange Securities during the Applicable Period, and each Person, if any, who controls such Person or its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) 15 of the Act or Section 20 of the Exchange ActAct (each, a “Participant”) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and or liabilities whatsoever, to which any Participant may become subject under the Securities Act, the Exchange Act or otherwise otherwise, insofar as any such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: :
(i) any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents any Registration Statement (or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of Prospectus (as amended or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, supplemented if any of the other transactions contemplated thereby Issuers shall have furnished any amendments or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (Bsupplements thereto) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action preliminary prospectus or “issuer free writing prospectus” (as defined in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: Rule 405) (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Applicationan “Issuer FWP”); or or
(ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplementstate, in any Registration Statement (or any amendment thereto) or Prospectus (as amended or supplemented if any of the Issuers shall have furnished any amendments or supplements thereto) or any preliminary prospectus or any Issuer FWP or any other solicitation material used by the Company document or authorized by it for use in connection with the Rights Offeringany amendment or supplement thereto, or in any Blue Sky Application, any a material fact required to be stated therein or necessary to make the statements therein not misleading; and will reimburse, but as incurred, the Participant for any legal or other expenses incurred by the Participant in each connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; provided, however, none of the Issuers will be liable in any such case solely and exclusively to the extent that any such loss, claim, damage, or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in any Registration Statement (or any amendment thereto) or Prospectus (as amended or supplemented if any of the Issuers shall have furnished any amendments or supplements thereto) or any preliminary prospectus or any Issuer FWP or any amendment or supplement thereto in reliance upon and in conformity with information relating to any Participant furnished to the Issuers by such Participant specifically for use therein. The indemnity provided for in this Section 7 will be in addition to any liability that the Issuers may otherwise have to the indemnified parties. The Issuers shall not be liable under this Section 7 for any settlement of any claim or action effected without their prior written consent, which shall not be unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees to indemnify and hold harmless the Issuers, their directors, their officers and each person, if any, who controls the Issuers within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Issuers or any such director, officer or controlling person may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement or Prospectus, any amendment or supplement thereto, or any preliminary prospectus or Issuer FWP, or (ii) the omission or the alleged omission to state therein a material fact necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Participant, furnished to the Dealer-Manager InformationIssuers by the Participant, specifically for use therein; and shall reimburse subject to the Company and limitation set forth immediately preceding this clause, will reimburse, as incurred, any such director, officer or controlling Person for any reasonable legal or other expenses reasonably incurred by the Company Issuers or any such director, officer or controlling Person person in connection with investigating or defending against or preparing to defend against appearing as a third party witness in connection with any such loss, claim, damage, liability or action as such expenses are incurredin respect thereof. The indemnity provided for in this Section 7 will be in addition to any liability that the Participants may otherwise have to the indemnified parties. The Participants shall not be liable under this Section 7 for any settlement of any claim or action effected without their consent, which shall not be unreasonably withheld.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action for which such indemnified party is entitled to indemnification under this Section 7, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 117, such indemnified party shall promptly notify the indemnifying party of the commencement thereof in writing; but the omission to so notify the indemnifying party (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraphs (a) and (b) above. In case any such lawsuitaction is brought against any indemnified party, claim or proceedingand it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it or to and/or other indemnified parties which that are different from or in addition additional to those available to the indemnifying party, or (iii) the indemnifying party (shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after receipt by the indemnifying party of notice of the institution of such action, then, in which case each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party); party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (iii) it being understood, however, that in connection with such action the indemnifying party shall not have employed be liable for the expenses of more than one separate counsel satisfactory (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by Participants who sold a majority in interest of the Registrable Securities and Exchange Securities sold by all such Participants in the case of paragraph (a) of this Section 7 or the Issuers in the case of paragraph (b) of this Section 7, representing the indemnified parties under such paragraph (a) or paragraph (b), as the case may be, who are parties to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim action or proceeding; actions) or (ivii) the indemnifying party shall authorize such has authorized in writing the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments All fees and expenses reimbursed pursuant to this paragraph (c) shall apply whether or not be reimbursed as they are incurred. After such notice from the indemnified party is a formal indemnifying party to any such lawsuitindemnified party, claim or proceeding. The the indemnifying party shall will not be liable for the costs and expenses of any settlement of any lawsuit, claim or proceeding such action effected by such indemnified party without its the prior written consent of the indemnifying party (which consent will shall not be unreasonably withheld), but if settled with unless such consent, the indemnifying indemnified party agrees, subject to the provisions of waived in writing its rights under this Section 117, to indemnify in which case the indemnified party may effect such a settlement without such consent. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement or compromise of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party, or indemnity could have been sought hereunder by any indemnified party, unless such settlement (A) includes an unconditional written release of the indemnified party, in form and substance reasonably satisfactory to the indemnified party, from and against any loss, damage or all liability by reason on claims that are the subject matter of such settlement. The Company agrees proceeding and (B) does not include any statement as to notify Maxim promptlyan admission of fault, culpability or cause Maxim failure to be notified promptly, of the assertion act by or on behalf of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 7 is unavailable to, or insufficient to hold harmless, an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), each indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by an such indemnified party as a result of the such losses, claims, damages, damages or liabilities (or expenses referred to actions in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(erespect thereof) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect (i) the relative benefits received by the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, from the Rights Offering or, offering of the Securities or (ii) if such the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportions as are appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, in connection with the statements or omissions which or alleged statements or omissions that resulted in such losses, claims, damages, damages or liabilities (or expenses, as well as any other relevant equitable considerationsactions in respect thereof). The relative benefits received by the Company, Issuers on the one hand, hand and Maxim, such Participant on the other hand, shall be deemed to be in the same proportion as: (x) as the total proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) of the Securities received by the Company bears bear to (y) the fees total net profit received by such Participant in connection with the sale of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-ManagerSecurities. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Issuers on the one hand, or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and Participants on the other, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or alleged statement or omission, and any other equitable considerations appropriate in the circumstances. The Company and the Dealer-Manager parties agree that it would not be just and equitable if the amount of such contribution pursuant to this Section 11(f) were determined by pro rata or per capita allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this Sectionparagraph (d). The Notwithstanding any other provision of this paragraph (d), no Participant shall be obligated to make contributions hereunder that in the aggregate exceed the total net profit received by such Participant in connection with the sale of the Securities, less the aggregate amount of losses, liabilities, claims, any damages and expenses incurred that such Participant has otherwise been required to pay by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such reason of the untrue or alleged untrue statement statements or omission the omissions or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required omissions to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering state a material fact, and (ii) no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11paragraph (d), each Person controlling person, if any, who controls a Dealer-Manager Participant within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Managerthe Participants, and each Persondirector of any Issuer, each officer of any Issuer and each person, if any, who controls the Company any Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseIssuers.
Appears in 2 contracts
Sources: Registration Rights Agreement (Aleris International, Inc.), Registration Rights Agreement (Aleris International, Inc.)
Indemnification and Contribution. (a) The In the case of each offering of Registrable Securities made pursuant to this Agreement, the Company agrees to shall indemnify and hold harmless each Holder, its officers and indemnify Maxim directors, each underwriter of Registrable Securities so offered and its affiliates and each Person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (the foregoing persons within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates Securities Act ("Holder Indemnitees"), from and against any and all (A) claims, liabilities, losses, damages, expenses and judgments, joint or several, to which they or any of them may become subject, including any amount paid in settlement of any litigation commenced or threatened, and shall promptly reimburse them, as and when incurred, for any legal or other expenses incurred by them in connection with investigating any claims and defending any actions, insofar as such losses, claims, damages and damages, liabilities whatsoeveror actions shall arise out of, under or shall be based upon, any violation or alleged violation by the Company of the Securities Act Act, any blue sky laws, securities laws or otherwise (as incurred other applicable laws of any state or suffered)county in which the Registrable Securities are offered, arising and relating to action taken or action or inaction required of the Company in connection with such offering, or shall arise out of of, or shall be based upon: (i) , any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement (or in any preliminary or final prospectus included therein) relating to the offering and sale of such Registrable Securities, or any amendment thereof or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application document incorporated by reference therein, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information)misleading; (ii) any withdrawal or termination by but the Company of, or failure by the Company shall not be liable to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or any Holder Indemnitee in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services such case to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, extent that any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , any untrue statement or alleged untrue statement, or any omission or alleged omission, if such statement or omission shall have been made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of such Holder specifically for inclusion in the Registration Statement (ior in any preliminary or final prospectus included therein), or any amendment thereof or supplement thereto. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any Holder and shall survive the transfer of such securities. The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Holder Indemnitee.
(b) In the case of each offering of Registrable Securities made pursuant to this Agreement, each Holder shall indemnify and hold harmless the Company, its officers and directors and each person, if any, who controls any of the foregoing within the meaning of the Securities Act (the "Company Indemnitees"), from and against any and all claims, liabilities, losses, damages, expenses and judgments, joint or several, to which they or any of them may become subject, including any amount paid in settlement of any litigation commenced or threatened, and shall promptly reimburse them, as and when incurred, for any legal or other expenses incurred by them in connection with investigating any claims and defending any actions, insofar as any such losses, claims, damages, liabilities or actions shall arise out of, or shall be based upon, any violation or alleged violation by such Holder of the Securities Act, any blue sky laws, securities laws or other applicable laws of any state or country in which the Registrable Securities are offered and relating to action taken or action or inaction required of such Holder in connection with such offering, or shall arise out of, or shall be based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (A) in any Offer Documents, or in any preliminary or final prospectus included therein) relating to the offering and sale of such Registrable Securities or any amendment thereof or supplementsupplement thereto, in or any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively only to the extent that the such untrue statement is contained in, or alleged untrue statement or omission or alleged omission was made such fact is omitted from, information furnished in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse writing to the Company by or on behalf of such Holder specifically for inclusion in such Registration Statement (or in any preliminary or final prospectus included therein). Such indemnity shall remain in full force and effect regardless of any such director, officer investigation made by or controlling Person for on behalf of any legal or other expenses reasonably incurred by the Company or Indemnitee. The foregoing indemnity is in addition to any such director, officer or controlling Person in connection with investigating or defending or preparing liability which Holder may otherwise have to defend against any such loss, claim, damage, liability or action as such expenses are incurredCompany Indemnitee.
(c) If In case any lawsuit, claim or proceeding is brought against (including any indemnified party governmental investigation) shall be instituted involving any person in respect of which indemnification indemnity may be sought against the indemnifying party pursuant to this Section 11, such person (the "indemnified party party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party of the commencement of such lawsuit, claim party") in writing. No indemnification provided for in subsection (a) or proceeding; provided, however, that the failure so (b) shall be available to notify any person who shall fail to give notice as provided in this subsection (c) if the indemnifying party to whom notice was not given was unaware of the proceeding to which such notice would have related and was materially prejudiced by the failure to give such notice, but the failure to give such notice shall not relieve the indemnifying party or parties from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it they may have to such the indemnified party for contribution or otherwise than under this Section 11on account of the provisions of subsection (a) or (b). In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written notice from to the extent that it shall wish, jointly with any other indemnifying party to such indemnified partysimilarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party and shall pay as incurred the fees and disbursements of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that related to such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgmentproceeding. Notwithstanding the election of the indemnifying party to assume the defense of In any such lawsuit, claim or proceeding, such any indemnified party shall have the right to employ separate retain its own counsel and to participate in at its own expense. Notwithstanding the defense of such lawsuitforegoing, claim or proceeding, and the indemnifying party shall bear pay as incurred the reasonable fees, costs fees and expenses of such separate the counsel retained by the indemnified party in the event (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor1) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may mutually agreed to the retention of such counsel or (2) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel, in the written opinion of such counsel, would be legal defenses available inappropriate due to it actual or to other potential differing interests between them. The indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties which are different from or (in addition to those available to local counsel). Such firm shall be designated in writing by the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense Holders of such action on behalf a majority of the indemnified party); (iii) Registrable Securities disposed under the indemnifying party shall not have employed counsel satisfactory to such indemnified party, applicable Registration Statements in the exercise case of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice Holder Indemnitees and by the Company in the case of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceedingCompany Indemnitees. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its written consent (which consent will not be unreasonably withheld), but if settled with such consentconsent or if there be a final judgment for the plaintiff, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees to notify Maxim promptly, settlement or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximjudgment.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held is unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party under subsection (a) or (b) in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, or if the indemnified thereunderparty failed to give the notice required under subsection (c), the Company, on the one hand, and Maxim, on the other hand, then each indemnifying party shall contribute to the aggregate amount paid or payable by the indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred or actions or proceedings in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect not only both the relative benefits received by such party (as compared to the Company, on the one hand, and Maxim, on the benefits received by all other hand, parties) from the Rights Offering oroffering in respect of which indemnity is sought, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, all parties in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, a party shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by it bear to the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total amounts received by the Dealer-Managereach other party. The relative Relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager parties agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.this
Appears in 2 contracts
Sources: Registration Rights Agreement (Pegasus Communications Corp), Registration Rights Agreement (Pegasus Communications Corp)
Indemnification and Contribution. (a) The In the event of a registration of any Warrant Shares under the Securities Act pursuant to Section 7.1 or 7.2, the Company agrees shall indemnify and hold harmless, to hold harmless the full extent permitted by law, each seller of such Warrant Shares thereunder and indemnify Maxim and its affiliates and any each partner, officer, trustee, director, employee employee, agent or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any Affiliate of such affiliates from and seller (collectively, for purposes of this Section 7.5, a "seller"), against any and all (A) losses, claims, damages and damages, liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person seller may become subject, subject under the Securities Act or otherwise, insofar as such losslosses, claimclaims, damage, liability damages or action arises liabilities (or actions in respect thereof) arise out of, of or is are based upon: (i) upon any untrue statement or alleged untrue statement of a any material fact contained (A) in any Offer Documentsregistration statement under which such Warrant Shares were registered under the Securities Act pursuant to Sections 7.1, any preliminary prospectus or final prospectus contained therein, or in any such amendment or supplementsupplement thereof, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering arise out of or (B) in any Blue Sky Application; or (ii) are based upon the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but and shall pay or reimburse each such seller for any legal or other expenses reasonably incurred by them in each connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case solely to a seller, if and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse information pertaining to such seller furnished in writing to the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate seller specifically for use in such lawsuitregistration statement, claim prospectus, amendment or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximsupplement.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Warrant Agreement (Autobond Acceptance Corp), Warrant Agreement (Autobond Acceptance Corp)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers and indemnify Maxim Affiliates of each Underwriter and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of either the Act or the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement, any preliminary prospectus or the Prospectus, or in any amendment or supplement thereto, in any other solicitation material used by the Company thereto or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, but and (subject to the limitations set forth in the proviso to this sentence) agree to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that the any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any preliminary prospectus or the Prospectus, or in any amendment or supplement thereto, in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information furnished to the Company and by or on behalf of any Underwriter through the Managers specifically for inclusion therein; provided further that with respect to any untrue statement or omission of material fact made in the any preliminary prospectus, the indemnity agreement contained in this Section 8(a) shall not inure to the benefit of any Underwriter from whom such directorperson asserting such loss, officer claim, damage or controlling Person for any legal or other expenses reasonably incurred by liability purchased the Company or any such directorShares concerned, officer or controlling Person in connection with investigating or defending or preparing to defend against the extent that any such loss, claim, damagedamage or liability of such Underwriter occurs under the circumstance where (i) the Company had previously furnished copies of the Prospectus on a timely basis to the Managers, (ii) the untrue statement or omission of a material fact contained in any preliminary prospectus was corrected in the Prospectus and (iii) there was not sent or given to such person, at or prior to the written confirmation of the sale of such Shares to such person, a copy of the Prospectus. This indemnity agreement will be in addition to any liability that the Company may otherwise have. The Company shall not be liable under this Section 8 to any indemnified party regarding any settlement or action compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by the Company, which consent shall not be unreasonably withheld.
(b) Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless the Company, its directors, officers and Affiliates, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such expenses are incurredUnderwriter furnished to the Company by or on behalf of such Underwriter through the Managers specifically for inclusion in the Registration Statement, any preliminary prospectus or the Prospectus (or in any amendment or supplement thereto). This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have. The Company acknowledges that, under the heading "Underwriting," the table after the first paragraph, the third paragraph, the seventh paragraph and the twelfth paragraph in any preliminary prospectus and the Prospectus constitute the only information furnished in writing by or on behalf of the Underwriters for inclusion in the Registration Statement, any preliminary prospectus or the Prospectus or in any amendment or supplement thereto.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except obligations to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify other than the indemnifying party of the commencement of such lawsuit, claim indemnification obligation provided in paragraph (a) or proceeding, the (b) above. The indemnifying party shall be entitled to participate appoint counsel (including local counsel) of the indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in such lawsuit, claim or proceeding, and, after written notice from any action for which indemnification is sought (in which case the indemnifying party to such indemnified shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, to assume retained by the defense of such lawsuit, claim indemnified party or proceeding with counsel of its choice at its expenseparties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party in the exercise of its reasonable judgmentparty. Notwithstanding the indemnifying party's election of to appoint counsel (including local counsel) to represent the indemnifying indemnified party to assume in an action, the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interestinterest (based on the advise of counsel to the indemnified person); (ii) such action includes both the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded (based on the advise of counsel to the indemnified person) that there may be legal defenses available to it or to and/or other indemnified parties which that are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceedingaction; or (iv) the indemnifying party shall authorize such the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing It is understood and agreed that the indemnifying party shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all indemnified parties. Any such separate firm for any Underwriter, its directors, officers and Affiliates and any control person shall be designated in writing by the Managers and any such separate firm for any of the Company, its directors, officers and Affiliates and any control person shall be designated in writing by the Company. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement action) unless such settlement, compromise or consent includes an unconditional release of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the each indemnified party from and against any loss, damage or all liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuitsuch claim, claim action, suit or proceeding against it arising out and does not include any statement as to, or any admission of, fault, culpability or failure to act by or on behalf of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid In the event that the indemnity provided in paragraph (a) or payable by an indemnified party as a result (b) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held 8 is unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderfor any reason, the Company, on Company and the one hand, and Maxim, on the other hand, shall Underwriters severally agree to contribute to the aggregate losses, claims, damages, damages and liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and or other expenses reasonably incurred in connection withwith investigating or defending any loss, and any amount paid in settlement ofclaim, any damage, liability or action) (collectively, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company"LOSSES") as incurred to which the Company and Maxim one or more of the Underwriters may be subject, subject in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, by the Underwriters on the other hand, from the Rights Offering oroffering of the Shares; provided, if however, that in no case shall any Underwriter be responsible for any amount in excess of the purchase discount or commission applicable to the Shares purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is not permitted by applicable lawunavailable for any reason, the Company and the Underwriters severally shall contribute in such proportions proportion as are is appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities or expensesLosses, as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company, on the one hand, and Maxim, on the other hand, Company shall be deemed to be in the same proportion as: (x) equal to the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually them, and benefits received by the Dealer-ManagerUnderwriters shall be deemed to be equal to the total purchase discounts and commissions. The relative Relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied provided by the Company on the one hand or Maxim (which consists solely and exclusively the Underwriters on the other, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omissionomission and any other equitable considerations appropriate in the circumstance. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if the amount of such contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionabove. Notwithstanding the provisions of this Section 11: paragraph (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Section 8 are several in proportion to their respective obligations and not joint. For purposes of this Section 118, each Person controlling a Dealer-Manager person who controls an Underwriter within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee, Affiliate and agent of an Underwriter shall have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Person, if any, person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, Act and each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses the applicable terms and conditions of this paragraph (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwised).
Appears in 2 contracts
Sources: Underwriting Agreement (Dresser-Rand Group Inc.), Underwriting Agreement (Dresser-Rand Group Inc.)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless and indemnify Maxim the Dealer-Manager and its affiliates and any officer, director, employee or agent of Maxim Source or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim the Dealer-Manager or any of such affiliates (collectively, the “Indemnified Parties”) from and against any and all (A) losses, claims, damages damages, liabilities and liabilities expenses whatsoever, under the Securities Act or otherwise (as incurred or sufferedsuffered and including, but not limited to, any and all legal or other expenses incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from the Dealer-Manager), (A) arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); , (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) any actions taken or omitted to be taken by an indemnified party Indemnified Party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; Company or (iv) any failure by the Company to comply with any agreement or covenant covenant, contained in this Agreement; Agreement or (vB) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of MaximSource’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that in the failure so to notify case of clause (B) only, the indemnifying party Company shall not relieve the indemnifying party be responsible for any liabilities or expenses of any Indemnified Party that have resulted primarily from such Indemnified Party’s (x) gross negligence, bad faith or willful misconduct in connection with any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement advice, actions, inactions or services referred to herein or (y) use of any Offering materials or information concerning the Company in connection with the Offer that were not authorized for such lawsuituse by the Company and which use constitutes negligence, claim bad faith or proceeding, willful misconduct.
(b) If the indemnifying party shall indemnification provided for in the foregoing paragraph is judicially determined to be unavailable (other than in accordance with the terms hereof) to any Indemnified Party otherwise entitled to participate indemnity in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt respect of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party losses, claims, damages or liabilities referred to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants inherein, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified partythen, in the exercise lieu of indemnifying such indemnified party’s reasonable judgmentperson hereunder, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party Dealer-Manager is a formal party the person entitled to any such lawsuit, claim indemnification or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consentreimbursement, the indemnifying party agrees, subject Company shall contribute to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party the Indemnified Party as a result of the such losses, claims, damages, damages or liabilities or (and expenses referred relating thereto) (i) in such proportion as is appropriate to in reflect the immediately preceding paragraph shall be deemed relative benefits to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maximthe Dealer-Manager, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision Rights Offering or (including any investigation, legal and other expenses incurred ii) if the allocation provided for in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyclause (i) as incurred to which the Company and Maxim may be subjectabove is not available, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above in such clause (i) but also the relative fault of each of the Company, on Company and the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expensesDealer-Manager, as well as any other relevant equitable considerations. The relative benefits ; provided, however, in no event shall the Dealer-Manager’s aggregate contribution to the amount paid or payable exceed the aggregate amount of fees actually received by the CompanyDealer-Manger under this Agreement. For the purposes of this Agreement, on the one hand, relative benefits to the Company and Maxim, on to the other hand, Dealer-Manager of the engagement shall be deemed to be in the same proportion as: as (xa) the total proceeds from value paid or contemplated to be paid or received or contemplated to be received by the Company in the Rights Offering, whether or not the Rights Offering is consummated, bears to (net of b) the fees of paid or to be paid to the Dealer-Manager set forth in Section 6 hereof, but before deducting expensesunder this Agreement.
(c) received by the The Company bears to (y) the fees of also agrees that neither the Dealer-Manager set forth Manager, nor any other Indemnified Party, shall have any liability to the Company for or in Section 6 hereof actually received by connection with the Dealer-Manager’s engagement as Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, foregoing agreement shall be determined by reference toin addition to any rights that the Dealer-Manager, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim any Indemnified Party may have at common law or otherwise, including, but not limited to, any right to contribution. For the sole purpose of enforcing and otherwise giving effect to the provisions of this Agreement, the Company hereby consents to personal jurisdiction and service and venue in any court in which any claim which is subject to this agreement is brought against the Dealer-Manager or any other indemnified party.
(which consists solely and exclusively d) The Company agrees that it will not, without the prior written consent of the Dealer-Manager Information) and Manager, settle or compromise or consent to the parties’ relative intententry of any judgment with respect to any pending or threatened claim, knowledgeaction, access to information and opportunity to correct suit or prevent such statement proceeding in respect of which indemnification or omission. The Company and contribution may be sought hereunder (whether or not the Dealer-Manager agree that it would not be just is an actual or potential party to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release, reasonably satisfactory in form and equitable if contribution pursuant substance to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by Manager, releasing the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty all liability arising out of such fraudulent misrepresentation. For purposes of this Section 11claim, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against proceeding.
(e) The Company agrees to reimburse each Indemnified Party for all expenses as they are incurred in connection with enforcing such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseIndemnified Party’s rights hereunder.
Appears in 2 contracts
Sources: Dealer Manager Agreement (IEG Holdings Corp), Dealer Manager Agreement (IEG Holdings Corp)
Indemnification and Contribution. (a) The Company agrees to hold harmless and indemnify Maxim and its affiliates and In the event of any officer, director, employee or agent registration of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, Registrable Securities under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission pursuant to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Companyholder of such Registrable Securities, its such holder's directors and officers, directors and employees, each of its directors and each Personother person (including each underwriter) who participated in the offering of such Registrable Securities and each other person, if any, who controls the Company such holder or such participating person within the meaning of the Securities Act, from and against any losslosses, claimclaims, damage damages or liabilityliabilities, joint or several, or any action in respect thereof, to which the Company such holder or any such director, director or officer or participating person or controlling Person person may become subject, subject under the Securities Act or otherwiseany other statute or at common law, insofar as such losslosses, claimclaims, damage, liability damages or action arises liabilities (or actions in respect thereof) arise out of, of or is are based upon: upon (i) any untrue statement or alleged untrue statement of a any material fact contained (A) in any Offer Documentscontained, or in any such amendment or supplementon the effective date thereof, in any other solicitation material used by Registration Statement under which such securities were registered under the Company Securities Act, any preliminary prospectus or authorized by it for use in connection with the Rights Offering final prospectus contained therein, or (B) in any Blue Sky Application; amendment or supplement thereto, or (ii) the omission or any alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such holder or such director, officer or participating person or controlling Person person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigatingholder or such director, preparing to defend officer or defending any such action participating person or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.person in
Appears in 2 contracts
Sources: Registration Rights Agreement (Level 8 Systems Inc), Purchase Agreement (Level 8 Systems Inc)
Indemnification and Contribution. (a) The Company agrees to shall indemnify and hold harmless each Underwriter, its directors, officers, employees and indemnify Maxim and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange Securities Act) Maxim or any of such affiliates , from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and all (A) lossessales of Notes), claimsto which that Underwriter, damages and liabilities whatsoeverdirector, officer, employee, affiliate or controlling person may become subject, under the Securities Act or otherwise (otherwise, insofar as incurred such loss, claim, damage, liability or suffered)action arises out of, arising out of or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained in (A) any Preliminary Prospectus, the Offer Documents Registration Statement, the Prospectus or in any amendment or supplement thereto, in (B) any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, Issuer Free Writing Prospectus or in any blue sky application amendment or other document prepared supplement thereto or executed (C) any Permitted Issuer Information used or referred to in any “free writing prospectus” (as defined in Rule 405) used or referred to by the Company any Underwriter or (or based on any written information furnished by the Companyii) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information, any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading (other than statements and shall reimburse each Underwriter and each such director, officer, employee, affiliate or omissions made in reliance controlling person promptly upon and in conformity with the Dealer-Manager Information); (ii) demand for any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of that Underwriter, director, officer, employee, affiliate or controlling person in connection with investigating or defending or preparing to defend against any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any such loss, claim, damage, liability or expense pursuant action as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the preceding sentence which has been determined extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in a final judgment any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement thereto or in any Permitted Issuer Information, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Representatives by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part behalf of any indemnified partyUnderwriter specifically for inclusion therein, which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement is in addition to any liability that the Company may otherwise have to any Underwriter or to any director, officer, employee, affiliate or controlling person of that Underwriter.
(b) The Dealer-Manager Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, its officersdirectors, directors officers and employees, each of its directors and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company Company, or any such director, officer officer, employee or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer DocumentsPreliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer DocumentsPreliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Applicationsupplement thereto, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information concerning such Underwriter furnished to the Company and through the Representatives by or on behalf of that Underwriter specifically for inclusion therein, which information is limited to the information set forth in Section 8(e). The foregoing indemnity agreement is in addition to any such director, officer or controlling Person for liability that any legal or other expenses reasonably incurred by Underwriter may otherwise have to the Company or any such director, officer officer, employee or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredperson.
(c) If Promptly after receipt by an indemnified party under this Section 8 of notice of any lawsuit, claim or proceeding is brought against the commencement of any action, the indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 8 except to the extent that it has been materially prejudiced in any material respect by such failure and in any event and, provided, further, that the failure to notify the indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such an indemnified party otherwise than under this Section 118. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with counsel the defense thereof other than reasonable costs of its choice at its expenseinvestigation; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party Representatives shall have the right to employ separate counsel to represent jointly the Representatives and those other Underwriters and their respective directors, officers, employees, affiliates and controlling persons who may be subject to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt liability arising out of any invoice therefor) if: claim in respect of which indemnity may be sought by the Underwriters against the Company under this Section 8 if (i) the use of counsel chosen by Company and the indemnifying party to represent such indemnified party would present such counsel with a conflict of interestUnderwriters shall have so mutually agreed; (ii) the defendants inCompany has failed within a reasonable time to retain counsel reasonably satisfactory to the Underwriters; (iii) the Underwriters and their respective directors, or targets ofofficers, any such lawsuitemployees, claim or proceeding include both an indemnified party affiliates and the indemnifying party, and such indemnified party controlling persons shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which them that are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceedingCompany; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Underwriters or their respective directors, officers, employees, affiliates or controlling persons, on the one hand, and the Company, on the other hand, and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the Company. No indemnifying party shall authorize such indemnified party to employ separate counsel at (i) without the expense prior written consent of the indemnifying party. The foregoing indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party shall from all liability arising out of such claim, action, suit or proceeding and does not include any findings of fact or admissions of fault or culpability as to the indemnified party, or (ii) be liable for any settlement of any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees to notify Maxim promptly, settlement or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximjudgment.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 8 shall for any reason held to be unavailable from any indemnifying party to or is insufficient to hold harmless a an indemnified party under Section 8(a) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified thereunderparty, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated amount paid or payable by such indemnification provision indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyi) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and Maximthe Underwriters, on the other handother, from the Rights Offering or, offering of the Notes or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and Maximthe Underwriters, on the other handother, in connection with respect to the statements or omissions which that resulted in such lossesloss, claimsclaim, damagesdamage or liability, liabilities or expensesaction in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maximthe Underwriters, on the other handother, with respect to such offering shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Notes purchased under this Agreement (before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager Company, as set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each table on the cover page of the CompanyProspectus, on the one hand, and Maximthe total underwriting discounts and commissions received by the Underwriters with respect to the Notes purchased under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand, . The relative fault shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, on the one hand, or Maxim (which consists solely and exclusively the Underwriters, on the other hand, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Sectionherein. The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 11 8(d) shall be deemed to include include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such action or claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the net proceeds from the sale of the Notes underwritten by it exceeds the amount of any damages that such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of The Underwriters’ obligations to contribute as provided in this Section 11, each Person controlling a Dealer-Manager within 8(d) are several in proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the meaning of Section 15 Company acknowledges and agrees that the statements regarding delivery of the Securities Act Notes by the Underwriters set forth on the cover page of, and the concession and reallowance figures and the two paragraphs relating to stabilization, syndicate covering transactions, penalty bids and over-allotments by the Underwriters appearing under the caption “Underwriting” in the most recent Preliminary Prospectus and the Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to the Company by or Section 20 on behalf of the Exchange Act shall have the same rights to contribution as such Dealer-ManagerUnderwriters specifically for inclusion in any Preliminary Prospectus, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of Statement, the Company shall have the same rights to contribution as the CompanyProspectus, subject any Issuer Free Writing Prospectus or in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit amendment or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwisesupplement thereto.
Appears in 2 contracts
Sources: Underwriting Agreement (Mohawk Industries Inc), Underwriting Agreement (Mohawk Industries Inc)
Indemnification and Contribution. (a) A. The Company Depositor agrees to indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and any officereach person, directorif any, employee who controls or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates Securities Act from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereofthereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Notes), to which the Company such Underwriter or any such director, officer or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Registration Statement, or in any such amendment thereof or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission was made to state therein a material fact required to be stated therein or necessary to make the statements therein, in reliance upon and in conformity with the Dealer-Manager Informationlight of the circumstances under which they were made, not misleading and shall reimburse the Company such Underwriter and any each such director, officer or controlling Person person promptly upon demand for any legal or other expenses reasonably incurred by the Company such Underwriter or any such director, officer or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Depositor shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus, or any amendment thereof or supplement thereto, or the Registration Statement, or any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein. The foregoing indemnity agreement is in addition to any liability which the Depositor may otherwise have to any Underwriter or any controlling person of any of such Underwriter. The only information furnished by the Underwriters or on behalf of the Underwriters for use in connection with the preparation of the Registration Statement or the Prospectus is described in Section 8(I) hereof.
B. Each Underwriter severally agrees to indemnify and hold harmless the Depositor, each of its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the Securities Act against any and all loss, claim, damage or liability, or any action in respect thereof, to which the Depositor or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (ci) If any lawsuituntrue statement or alleged untrue statement of a material fact contained in the Registration Statement, claim or proceeding any amendment thereof or supplement thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein, and shall reimburse the Depositor and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Depositor or any director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is brought against in addition to any liability which any Underwriter may otherwise have to the Depositor or any such director, officer or controlling person. The only information furnished by the Underwriters or on behalf of the Underwriters for use in connection with the preparation of the Registration Statement or the Prospectus is described in Section 8(I) hereof.
C. Promptly after receipt by any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to under this Section 118 of notice of any claim or the commencement of any action, such indemnified party shall promptly shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the an indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 8 except to the extent that it has been materially prejudiced in any material respect by such failure and in and, provided further, that the failure to notify any event indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 118. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; providedaction, howeverexcept to the extent provided in the next following paragraph, that such counsel the indemnifying party shall not be satisfactory liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding, such investigation. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense of such lawsuitthereof, claim or proceeding, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay be at the expense of such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) ifindemnified party unless: (i) the use of counsel chosen employment thereof has been specifically authorized by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interestin writing; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by such counsel that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (and in which case the indemnifying party shall not have the right to direct the defense reasonable judgment of such action on behalf of the counsel it is advisable for such indemnified party)party to employ separate counsel; or (iii) the indemnifying party shall not have employed has failed to assume the defense of such action and employ counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgmentwhich case, to represent if such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) notifies the indemnifying party shall authorize such indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not , the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to one local counsel per jurisdiction) at any time for all such indemnified parties, which firm shall be designated in writing by the related Underwriter, if the indemnified parties under this Section 8 consist of one or more Underwriters or any of its or their controlling persons, or the Depositor, if the indemnified parties under this Section 8 consist of the Depositor or any of the Depositor's directors, officers or controlling persons. Each indemnified party, as a condition of the indemnity agreements contained in Section 8(A) and 8(B) shall use its best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall be liable for any settlement of any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage loss or liability by reason of such settlementsettlement or judgment. The Company Notwithstanding the foregoing paragraph, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, the indemnifying party agrees to notify Maxim promptly, or cause Maxim to that it shall be notified promptly, liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the assertion aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of any lawsuitsuch settlement.
D. [Reserved]
E. Each Underwriter severally agrees, claim or proceeding against assuming all Seller-Provided Information is accurate and complete in all material respects, to indemnify and hold harmless the CompanyDepositor, any each of its the Depositor's officers or and directors or any Person and each person who controls any of the foregoing Depositor within the meaning of Section 20(a) 15 of the Exchange ActSecurities Act against any and all losses, arising claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or relating are based upon any untrue statement of a material fact contained in the Rights OfferingComputational Materials and ABS Term Sheets provided by such Underwriter and agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by him, her or it in connection with investigating or defending or preparing to defend any such loss, claim, damage, liability or action as such expenses are incurred. The Company further agrees that obligations of an Underwriter under this Section 8(E) shall be in addition to any settlement liability which such Underwriter may otherwise have. The procedures set forth in Section 8(C) shall be equally applicable to this Section 8(E).
F. If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(A), 8(B) or 8(E) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Depositor on the one hand and the related Underwriter on the other, from the offering of the related Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 8C., in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Depositor on the one hand and the related Underwriter on the other, with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits of the Depositor and an Underwriter shall be deemed to be in such proportion as the total net proceeds from the offering (before deducting expenses) received by the Depositor bear to the total underwriting discounts and commissions as set forth on the cover page of the Prospectus Supplement received by such Underwriter. The relative fault of an Underwriter and the Depositor shall be determined by reference to whether the untrue or alleged untrue statement of a lawsuitmaterial fact or omission or alleged omission to state a material fact relates to information supplied by the Depositor or by such Underwriter, claim or proceeding against it arising out the intent of Rights Offering shall include an explicit and unconditional release from the parties bringing and their relative knowledge, access to information and opportunity to correct or prevent such lawsuit, claim statement or proceeding omission and other equitable considerations. The Depositor and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(F) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purposes) or by any other method of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within allocation which does not take into account the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the lossesloss, claimsclaim, damagesdamage or liability, liabilities or expenses action in respect thereof, referred to above in the immediately preceding paragraph this Section 8(F) shall be deemed to include, subject to the limitations set forth abovefor purposes of this Section 8(F), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend investigating or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions For purposes of this Section 11: (i) the Dealer-Manager 8, in no case shall any Underwriter be required to contribute responsible for any amount in excess of the fees actually amount of the underwriting discounts and commissions received by the Dealer-Manager from the Company such Underwriter in connection with its purchase of the Rights Offering and (ii) no Person Notes. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. .
G. For purposes of this Section 118, as to each Person controlling a Dealer-Manager within Underwriter the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as term "Computational Materials" and "ABS Term Sheets" means such Dealer-Manager, and each Personportion, if any, who controls the Company within the meaning of Section 15 of the Securities Act or information delivered to the Depositor by such Underwriter pursuant to Section 20 of 4(B) for filing with the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.Commission on Form 8-K as:
Appears in 2 contracts
Sources: Underwriting Agreement (Imc Home Equity Loan Owner Trust 1998-4), Underwriting Agreement (Imc Home Equity Loan Owner Trust 1998-6)
Indemnification and Contribution. (a) The Company agrees to will indemnify and hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and each Underwriter against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) any upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, the Offer Documents Prospectus or any amendment or supplement thereto, or any related preliminary prospectus supplement (or contained in any other solicitation material used by Registration Statement after it first become effective but prior to the Company or authorized by it for use in connection with the Rights Offering, Pricing Agreement or in any blue sky application prospectus forming a part thereof during such period), or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in each connection with investigating or defending any such action or claim; provided, however, that the Company shall not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter, directly or through the Representatives, expressly for use therein; and provided, further, that the Company shall not be liable to any Underwriter under the indemnity agreement in this subsection (a) to the extent that any such loss, claim, damage or liability of such Underwriter results from the fact that such Underwriter sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus or the Prospectus as then amended or supplemented (excluding documents incorporated by reference) in any case where such delivery is required by the Act and the untrue statement or omission of a material fact contained in the Prospectus, any such amendment or supplement thereto or any such other document was corrected in the Prospectus or the Prospectus as then amended or supplemented if the Company has furnished prior to such confirmation sufficient copies thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, the Prospectus or any amendment or supplement thereto, or any related preliminary prospectus supplement, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by such Underwriter, directly or through the Representatives, expressly for use therein; and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, action or claim, damage, liability or action as such expenses are incurred.
(c) If Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of any lawsuit, claim or proceeding is brought against of the commencement of any action, such indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure in writing thereof. The omission so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to any indemnified party, provided that, in the case of any such indemnified omission relating to the commencement of an action, such omission shall relieve the indemnifying party otherwise than of liability under this Section 11. In such subsection, in case any such lawsuit, claim or proceeding action shall be brought against any indemnified party and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuitthereof, claim or proceeding with counsel of its choice at its expensesatisfactory to such indemnified party; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) if the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties parties, or both, which are different from or in addition additional to those available to the indemnifying party, the indemnified party (in which case the indemnifying party or parties shall not have the right to direct select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party or its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof (other than reasonable costs of investigation conducted at the request of such indemnifying party) unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by such indemnifying party, representing the indemnified parties under such subsection who are parties to such action); , (iiiii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of commencement of the institution of any such lawsuit, claim or proceeding; action or (iviii) the indemnifying party shall authorize such has authorized the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments ; and except that, if clause (i) or (iii) is applicable, such liability shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, only in respect of the assertion of any lawsuit, claim counsel referred to in such clause (i) or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximiii).
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held to 5 shall be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderunder subsection (a) or (b) above in respect of any losses, the Companyclaims, on the one handdamages or liabilities (or actions in respect thereof) referred to therein, and Maxim, on the other hand, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred or actions in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is in appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only offering of the relative benefits referred to above but Designated Securities and also the relative fault of the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the offering of the Designated Securities shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering of such Securities (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-ManagerUnderwriters in respect thereof, in each case as set forth on the cover page of the Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the indemnified party failed to give the notice required under subsection (c) above, including the consequences of such failure, and whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, of the Company on the one hand and the Underwriters, directly or through the Representatives, on the other hand. With respect to any Underwriter, such relative fault shall also be determined by reference to the extent (if any) to which such losses, claims, damages or liabilities (or actions in respect thereof) result from the fact that such Underwriter sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus or the Prospectus as then amended or supplemented (excluding documents incorporated by reference) if the Company has furnished prior to such confirmation copies thereof to such Underwriter. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(fsubsection (d) were determined by pro rata per-capita allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Sectionsubsection (d). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions in respect thereof) referred to above in this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationsuch action or claim. Notwithstanding the provisions of this subsection (d), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the applicable Designated Securities, underwritten by it and distributed to the public were offered to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The obligations of the Underwriters in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 115 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager person, if any, who controls any Underwriter within the meaning of Section 15 the Act, and the obligations of the Securities Act or Underwriters under this Section 20 5 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Exchange Act shall have Company, to each officer of the same rights Company who signs the Registration Statement and to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 2 contracts
Sources: Underwriting Agreement (United Technologies Corp /De/), Underwriting Agreement (United Technologies Corp /De/)
Indemnification and Contribution. (a) A. The Company Depositor agrees to indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates Securities Act from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereofthereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Offered Certificates), to which the Company such Underwriter or any such director, officer or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Registration Statement, or in any such amendment thereof or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission was made to state therein a material fact required to be stated therein or necessary to make the statements therein, in reliance upon and in conformity with the Dealer-Manager Informationlight of the circumstances under which they were made, not misleading and shall reimburse the Company such Underwriter and any each such director, officer or controlling Person person promptly upon demand for any legal or other expenses reasonably incurred by the Company such Underwriter or any such director, officer or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Depositor shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus, or any amendment thereof or supplement thereto, or the Registration Statement, or any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein. The foregoing indemnity agreement is in addition to any liability which the Depositor may otherwise have to any Underwriter or any controlling person of any of such Underwriter. The only information furnished by the Underwriters or on behalf of the Underwriters for use in connection with the preparation of the Registration Statement or the Prospectus is described in Section 8(I) hereof.
B. Each Underwriter severally agrees to indemnify and hold harmless the Depositor, each of its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the Securities Act against any and all loss, claim, damage or liability, or any action in respect thereof, to which the Depositor or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (ci) If any lawsuituntrue statement or alleged untrue statement of a material fact contained in the Registration Statement, claim or proceeding any amendment thereof or supplement thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein, and shall reimburse the Depositor and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Depositor or any director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is brought against in addition to any liability which any Underwriter may otherwise have to the Depositor or any such director, officer or controlling person. The only information furnished by the Underwriters or on behalf of the Underwriters for use in connection with the preparation of the Registration Statement or the Prospectus is described in Section 8(I) hereof.
C. Promptly after receipt by any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to under this Section 118 of notice of any claim or the commencement of any action, such indemnified party shall promptly shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the an indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 8 except to the extent that it has been materially prejudiced in any material respect by such failure and in and, provided further, that the failure to notify any event indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 118. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; providedaction, howeverexcept to the extent provided in the next following paragraph, that such counsel the indemnifying party shall not be satisfactory liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding, such investigation. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense of such lawsuitthereof, claim or proceeding, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay be at the expense of such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) ifindemnified party unless: (i) the use of counsel chosen employment thereof has been specifically authorized by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interestin writing; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by such counsel that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (and in which case the indemnifying party shall not have the right to direct the defense reasonable judgment of such action on behalf of the counsel it is advisable for such indemnified party)party to employ separate counsel; or (iii) the indemnifying party shall not have employed has failed to assume the defense of such action and employ counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgmentwhich case, to represent if such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) notifies the indemnifying party shall authorize such indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not , the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to one local counsel per jurisdiction) at any time for all such indemnified parties, which firm shall be designated in writing by the related Underwriter, if the indemnified parties under this Section 8 consist of one or more Underwriters or any of its or their controlling persons, or the Depositor, if the indemnified parties under this Section 8 consist of the Depositor or any of the Depositor's directors, officers or controlling persons. Each indemnified party, as a condition of the indemnity agreements contained in Section 8(A) and (B), shall use its best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall be liable for any settlement of any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing paragraph, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. The Company .
D. Each Underwriter agrees to notify Maxim promptly, or cause Maxim provide the Depositor no later than two Business Days prior to the day on which the Prospectus Supplement is required to be notified promptlyfiled pursuant to Rule 424 with a copy of any Computational Materials (as defined in Section 5(E) hereof) produced by such Underwriter for filing with the Commission on Form 8-K.
E. Each Underwriter severally agrees, assuming all Seller Provided Information is accurate and complete in all material respects, to indemnify and hold harmless the Depositor, each of the assertion of any lawsuit, claim or proceeding against the Company, any of its Depositor's officers or and directors or any Person and each person who controls any of the foregoing Depositor within the meaning of Section 20(a) 15 of the Exchange ActSecurities Act against any and all losses, arising claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or relating are based upon any untrue statement of a material fact contained in the Rights OfferingComputational Materials provided by such Underwriter and agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by him, her or it in connection with investigating or defending or preparing to defend any such loss, claim, damage, liability or action as such expenses are incurred. The Company further agrees that obligations of an Underwriter under this Section 8(E) shall be in addition to any settlement liability which such Underwriter may otherwise have. The procedures set forth in Section 8(C) shall be equally applicable to this Section 8(E).
F. If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(A), (B) or (E) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Depositor on the one hand and the related Underwriters on the other from the offering of the related Offered Certificates or (ii) if the allocation provided by clause (i) above is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 8(C), in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Depositor on the one hand and the related Underwriter on the other with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits of an Underwriter and the Depositor shall be deemed to be in such proportion as the total net proceeds from the offering (before deducting expenses) received by the Depositor bear to the total underwriting discounts and commissions received by the related Underwriter from time to time in negotiated sales of the related Offered Certificates. The relative fault of an Underwriter and the Depositor shall be determined by reference to whether the untrue or alleged untrue statement of a lawsuitmaterial fact or omission or alleged omission to state a material fact relates to information supplied by the Depositor or by such Underwriter, claim or proceeding against it arising out the intent of Rights Offering shall include an explicit and unconditional release from the parties bringing and their relative knowledge, access to information and opportunity to correct or prevent such lawsuit, claim statement or proceeding omission and other equitable considerations. The Depositor and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(F) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purposes) or by any other method of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within allocation which does not take into account the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the lossesloss, claimsclaim, damagesdamage or liability, liabilities or expenses action in respect thereof, referred to above in the immediately preceding paragraph this Section 8(F) shall be deemed to include, subject to the limitations set forth abovefor purposes of this Section 8(F), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend investigating or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions For purposes of this Section 11: (i) the Dealer-Manager 8, in no case shall any Underwriter be required to contribute responsible for any amount in excess of (x) the fees actually amount received by the Dealer-Manager from the Company such Underwriter in connection with its resale of the Rights Offering and Offered Certificates exceeds (iiy) no Person the amount paid by such Underwriter to the Depositor for the Offered Certificates by such underwriter hereunder. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. .
G. For purposes of this Section 118, as to each Person controlling a Dealer-Manager within Underwriter the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as term "Computational Materials" means such Dealer-Manager, and each Personportion, if any, who controls the Company within the meaning of Section 15 of the Securities Act or information delivered to the Depositor by such Underwriter pursuant to Section 20 of 8(D) for filing with the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.Commission on Form 8-K as:
Appears in 2 contracts
Sources: Underwriting Agreement (Imc Home Equity Loan Trust 1996-4), Underwriting Agreement (Imc Home Equity Loan Trust 1997-2)
Indemnification and Contribution. (a) The Company agrees to Depositor shall indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange ActAct as follows:
(i) Maxim or any of such affiliates from and against any and all (A) lossesloss, claimsliability, damages claim, damage and liabilities expense whatsoever, under the Securities Act or otherwise (as incurred or suffered)incurred, arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement (or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering), or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Definitive Free Writing Prospectus, or in any Issuer Information contained in any other Free Writing Prospectus, or in any Underwriter Derived Information to the extent caused by any material error in the Pool Information, or in the Registration Statement for the registration of the Securities as originally filed or in any amendment thereof or other filing incorporated by reference therein, or in the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information)misleading; (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, except insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, or liabilities are caused by any such untrue statement or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue omission or alleged untrue statement of a material fact or omission based upon any information with respect to which the omission or alleged omission Underwriters have agreed to state a material fact relates indemnify the Depositor pursuant to information supplied by Section 8(a)(ii). This indemnity agreement will be in addition to any liability which the Company or Maxim Depositor may otherwise have.
(which consists solely ii) against any and exclusively all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the Dealer-Manager Information) and the parties’ relative intentaggregate amount paid in settlement of any litigation, knowledgeor any investigation or proceeding by any governmental agency or body, access to information and opportunity to correct commenced or prevent threatened, or of any claim whatsoever based upon any such untrue statement or omission. The Company and , or any such alleged untrue statement or omission, if such settlement is effected with the Dealer-Manager agree that it would written consent of the Depositor (which consent shall not be just unreasonably withheld); and
(iii) against any and equitable if contribution pursuant all expense whatsoever (including, subject to this Section 11(f8(c) were determined hereof, the reasonable fees and disbursements of counsel chosen by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses Representative) incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this Section 8 shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made (A) in reliance upon and in conformity with written information furnished to the Depositor by the Representative expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) and set forth in the Prospectus and in the Prospectus Supplement, in each case as specified in the related Terms Agreement, or (B) in any ABS Filing or any amendment or supplement thereof, except to the extent that any untrue statement or alleged omission. Notwithstanding untrue statement therein or omission therefrom results (or is alleged to have resulted) from an error (a “Pool Error”) in the provisions of this Section 11: (i) information concerning the Dealer-Manager shall be required to contribute any amount in excess characteristics of the fees actually received Mortgage Loans furnished by the Dealer-Manager from Depositor to the Company Underwriter in connection with writing or by electronic transmission that was used in the Rights Offering preparation of any Computational Materials or ABS Term Sheets (or amendments or supplements thereof) included in such ABS Filing (or amendment or supplement thereof).
(b) Each Underwriter severally agrees to indemnify and (ii) no Person guilty of fraudulent misrepresentation (within hold harmless the meaning of Section 11(f) of Depositor, its directors, officers who signed the Securities Act) shall be entitled to contribution from any Person Registration Statement, and each person, if any, who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager controls the Depositor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of the Company who shall have signed this Section 8, as incurred, but only with respect to (i) untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and each director of in conformity with written information furnished to the Company shall have Depositor through the same rights to contribution as Representative expressly for use in the CompanyRegistration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto), subject in each case to clauses (i) and as specified in the related Terms Agreement, or (ii) any Computational Materials or ABS Term Sheets (or amendments or supplements thereof) furnished to the Depositor by such Underwriter through the Representative pursuant to Section 10 or Section 11, or directly by such Underwriter, to the extent that such materials were delivered to investors by such Underwriter, and incorporated by reference in such Registration Statement or the related Prospectus or any amendment or supplement thereof (except that no such indemnity shall be available for any losses, claims, damages or liabilities, or actions in respect thereof, resulting from any Pool Error), (iii) the Underwriters’ Information and the decrement/yield tables, (iv) any Underwriter Derived Information, except to the extent of any errors in any Underwriter Derived Information that are caused by errors in the Pool Information, (v) any Free Writing Prospectus for which the conditions set forth in Section 4(d)(v) above are not satisfied with respect to the prior approval by the Depositor, (vi) any portion of any Free Writing Prospectus (other than the Definitive Free Writing Prospectus) not constituting Issuer Information, (vii) any liability resulting from the Underwriters’ failure to provide any investor with the Definitive Free Writing Prospectus prior to entering into a Contract of Sale with such investor or failure to file any Free Writing Prospectus required to be filed by the Underwriter in accordance with Section 5(m), and (vii) any liability resulting from the Underwriters’ failure to comply with Section 4(f) in connection with any road show. This indemnity agreement will be in addition to any liability which the Underwriter may otherwise have. The Depositor acknowledges that the Underwriters’ Information and the decrement/yield tables constitute the only information furnished in writing by or on behalf of the immediately preceding sentence. Any Underwriter expressly for use in the Registration Statement or the Prospectus or in any amendment thereof or supplement thereto, as the case may be.
(c) Each indemnified party entitled shall give notice as promptly as reasonably practicable to contribution will, promptly after receipt of notice of commencement each indemnifying party of any action, suit or proceeding action commenced against such party in it with respect of to which a claim for contribution indemnity may be made against another party or parties, notify each party or parties from whom contribution may be soughtsought hereunder, but the omission failure to so notify such an indemnifying party or parties shall not relieve the party or parties from whom contribution may be sought it from any obligation liability which it or they may have under otherwise than on account of this Section 11(f8. An indemnifying party may participate at its own expense in the defense of any such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or otherwiseseparate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.
Appears in 1 contract
Sources: Underwriting Agreement (Deutsche Mortgage Securities Inc)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and each Underwriter against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject (including, without limitation, in its capacity as an Underwriter or as a "qualified independent underwriter" within the meaning of Schedule E of the Bylaws of the NASD), under the Securities Act, the Exchange Act or otherwise otherwise, specifically including, but not limited to, losses, claims, damages or liabilities (as incurred or suffered), actions in respect thereof) arising out of or based upon: upon (i) any breach of any representation, warranty, agreement or covenant of the Company herein contained, (ii) any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Registration Statement or any amendment or supplement thereto, in including any other solicitation material used by the Company or authorized by it for use in connection with the Rights OfferingIncorporated Document, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any untrue statement or alleged untrue statement of any material fact contained in order any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (including, but not limited to, agrees to reimburse each Underwriter for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of it in connection with investigating or defending any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any such loss, claim, damage, liability or expense pursuant action; provided, however, -------- ------- that the Company shall not be liable in any such case to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of extent that any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, such Preliminary Prospectus or the Prospectus, or any such amendment or supplement thereto, in reliance upon: , and in conformity with, written information relating to any Underwriter furnished to the Company by such Underwriter, directly or through you, specifically for use in the preparation thereof and, provided further, that the indemnity agreement -------- ------- provided in this Section 8(a) with respect to any Preliminary Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any losses, claims, damages, liabilities or actions based upon any untrue statement or alleged untrue statement of material fact or omission or alleged omission to state therein a material fact purchased Shares, if a copy of the Prospectus in which such untrue statement or alleged untrue statement or omission or alleged omission was corrected had not been sent or given to such person within the time required by the Act and the Rules and Regulations, unless such failure is the result of noncompliance by the Company with Section 4(d) hereof. The indemnity agreement in this Section 8(a) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act. This indemnity agreement shall be in addition to any liabilities which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company against any losses, claims, damages or liabilities, joint or several, to which the Company may become subject under the Act or otherwise, specifically including, but not limited to, losses, claims, damages or liabilities (or actions in respect thereof) arising out of or based upon (i) any breach of any representation, warranty, agreement or covenant of such Underwriter herein contained, (ii) any untrue statement or alleged untrue statement of a any material fact contained (A) in the Registration Statement or any Offer Documentsamendment or supplement thereto, including any Incorporated Document, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but or (iii) any untrue statement or alleged untrue statement of any material fact contained in each any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in the case solely of subparagraphs (ii) and exclusively (iii) of this Section 8(b) to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by such Underwriter, directly or through you, specifically for use in the preparation thereof, and shall agrees to reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredaction. The indemnity agreement in this Section 8(b) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each officer of the Company who signed the Registration Statement and each director of the Company, and each person, if any, who controls the Company within the meaning of the Act or the Exchange Act. This indemnity agreement shall be in addition to any liabilities which each Underwriter may otherwise have.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to under this Section 118 of notice of the commencement of any action, such indemnified party shall promptly shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceeding; provided, however, that thereof but the failure omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 118. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party party, and such indemnified party shall notify it notified the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, therein and, after to the extent that it shall elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuitthereof, claim or proceeding with counsel of its choice at its expensereasonably satisfactory to such indemnified party; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) if the defendants in, or targets of, in any such lawsuit, claim or proceeding action -------- ------- include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party, the indemnified party (in which case the indemnifying party or parties shall not have the right to direct select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of the indemnifying party's election so to assume the defense of such action and approval by the indemnified partyparty of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with appropriate local counsel) approved by the indemnifying party representing all the indemnified parties under Section 8(a) or 8(b) hereof who are parties to such action); , (iiiii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of commencement of the institution of any such lawsuit, claim or proceeding; action or (iviii) the indemnifying party shall authorize such has authorized the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments In no event shall apply whether or not any indemnifying party be liable in respect of any amounts paid in settlement of any action unless the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall have approved the terms of such settlement; provided that such -------- consent shall not be liable for unreasonably withheld. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any lawsuitpending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnification could have been sought hereunder by such indemnified party, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with unless such consent, the indemnifying party agrees, subject to the provisions settlement includes an unconditional release of this Section 11, to indemnify the such indemnified party from and against any loss, damage or all liability by reason on all claims that are the subject matter of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximproceeding.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for just and equitable contribution in circumstances any action in which the a claim for indemnification provided for in is made pursuant to this Section 11 8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 8 provides for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunderindemnification in such case, all the Company, on the one hand, and Maxim, on the other hand, parties hereto shall contribute to the aggregate losses, claims, damages, damages or liabilities to which they may be subject (after contribution from others) in such proportion so that the Underwriters severally and expenses of not jointly are responsible pro rata for the nature contemplated portion represented by such indemnification provision (including any investigation, legal and other expenses incurred in connection withthe percentage that the underwriting discount bears to the initial public offering price, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Personsis responsible for the remaining portion, other than Maximprovided, who may also be liable for contributionhowever, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager no Underwriter shall be required to contribute any -------- ------- amount in excess of the fees actually received amount by which the Dealer-Manager from underwriting discount applicable to the Company in connection with Shares purchased by such Underwriter exceeds the Rights Offering amount of damages which such Underwriter has otherwise required to pay and (ii) no Person person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraudulent misrepresentation. For purposes of The contribution agreement in this Section 118(d) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Personperson, if any, who controls any Underwriter, the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, Act and each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have Company.
(e) The parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the same rights to contribution as negotiations regarding the Companyprovisions hereof including, subject without limitation, the provisions of this Section 8, and are fully informed regarding said provisions. They further acknowledge that the provisions of this Section 8 fairly allocate the risks in each case to clauses (i) and (ii) light of the immediately preceding sentence. Any party entitled ability of the parties to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party investigate the Company and its business in respect of which a claim for contribution may be order to assure that adequate disclosure is made against another party or parties, notify each party or parties from whom contribution may be sought, but in the omission to so notify such party or parties shall not relieve Registration Statement and Prospectus as required by the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseAct and the Exchange Act.
Appears in 1 contract
Indemnification and Contribution. (ai) The Company agrees and the Selling Shareholders listed on Schedule I(a), jointly and severally, agree to indemnify and hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and each Underwriter against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise (including in settlement of any litigation if such settlement is effected with the written consent of the Company and/or such Selling Shareholders, as incurred or sufferedthe case may be), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness pursuant to Rules 430A and 434(d) of the Rules and Regulations, if applicable, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto (including any term sheet within the meaning of Rule 434 of the Rules and Regulations), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action; provided, however, that neither the Company nor any Selling Shareholder shall be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by you, or by any Underwriter through you, specifically for use in the preparation thereof; and further provided, that the foregoing indemnity agreement is subject to the condition that, insofar as it relates to any untrue statement, alleged untrue statement, omission or alleged omission made in any Preliminary Prospectus but eliminated or remedied in the Prospectus, such indemnity agreement shall not inure to the benefit of any Underwriter (or to the benefit of any person who controls the Underwriter) if the person asserting any loss, claim, damage or liability purchased the Securities from the Underwriter, and a copy of the Prospectus was not given to such person with, or prior to, the written confirmation of the sale of such Securities to such person. However, in no event shall any Selling Shareholder be liable under the provisions of this Section 6 for any amount in excess of the aggregate amount of proceeds such Selling Shareholder received from the sale of the Securities pursuant to this Agreement.
(ii) In addition to their other obligations under this Section 6(a), the Company and each Selling Shareholder, jointly and severally, agree that, as an interim measure during the pendency of any claim, action, investigation, inquiry or other proceeding arising out of or based upon: upon any statement or omission, or any alleged statement or omission, described in this Section 6(a), they will reimburse each Underwriter on a monthly basis for all reasonable legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company's and/or such Selling Shareholder's obligation to reimburse the Underwriters for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. To the extent that any such interim reimbursement payment is so held to have been improper, the Underwriter that received such payment shall promptly return it to the party or parties that made such payment, together with interest, compounded daily, determined on the basis of the prime rate (ior other commercial lending rate for borrowers of the highest credit standing) announced from time to time by US Bancorp (the "Prime Rate"). Any such interim reimbursement payments which are not made to an Underwriter within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement shall be in addition to any liabilities which the Company or such Selling Shareholders may otherwise have.
(iii) Each Selling Shareholder who is listed in Schedule I(b), severally and not jointly, agrees to indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject under the Act or otherwise (including in settlement of any litigation if such settlement is effected with the written consent of such Selling Stockholder), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness pursuant to Rule 430A and 434(d) of the Rules and Regulations, if applicable, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, in thereto (including any other solicitation material used by term sheet within the Company or authorized by it for use in connection with meaning of Rule 434 of the Rights OfferingRules and Regulations), or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively only to the extent that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany or such Underwriter by such Selling Shareholder, specifically for use in the preparation thereof, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action; provided, however, that the Selling Shareholder shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by you, or by any Underwriter through you, specifically for use in the preparation thereof; and further provided, that the foregoing indemnity agreement is subject to the condition that, insofar as it relates to any untrue statement, alleged untrue statement, omission or alleged omission made in any Preliminary Prospectus but eliminated or remedied in the Prospectus, such indemnity agreement shall not inure to the benefit of the Underwriter (or to the benefit of any person who controls the Underwriter) if the person asserting any loss, claim, damage or liability purchased the Securities from the Underwriter, and a copy of the Prospectus was not given to such person with, or prior to, the written confirmation of the sale of such Securities to such person. However, in no event shall any Selling Shareholder be liable under the provisions of this Section 6(a) (iii) for any amount in excess of the aggregate amount of proceeds such Selling Shareholder received from the sale of the Securities pursuant to this Agreement.
(b) Each Underwriter will indemnify and hold harmless the Company and each Selling Shareholder against any losses, claims, damages or liabilities to which the Company and the Selling Shareholders may become subject, under the Act or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto (including any term sheet within the meaning of Rule 434 of the Rules and Regulations), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by you, or by such Underwriter through you, specifically for use in the preparation thereof, and will reimburse the Company and any such director, officer or controlling Person the Selling Shareholders for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person Selling Shareholder in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredaction.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure omission so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 11to the extent it is not prejudiced as a proximate result of such failure. In case any such lawsuit, claim or proceeding action shall be brought against any indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceedingin, and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, and after written notice from the indemnifying party to such indemnified party of the indemnifying party, 's election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding with counsel of its choice at its expenseinvestigation; provided, however, that such counsel shall be satisfactory to if the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case party, the indemnifying indemnified party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments It is understood that the indemnifying party shall apply whether not, in connection with any proceeding or not related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm at any time for all such indemnified party is a formal party parties. Such firm shall be designated in writing by the Representatives and shall be reasonably satisfactory to any such lawsuit, claim or proceedingthe Company in the case of parties indemnified pursuant to Section 6(a) and shall be designated in writing by the Company and shall be reasonably satisfactory to the Representatives in the case of parties indemnified pursuant to Section 6(b). The An indemnifying party shall not be liable for obligated under any settlement of agreement relating to any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of action under this Section 11, 6 to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against which it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximhas not agreed in writing.
(d) The If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth subsection (a) or (b) above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(ei) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company and the Selling Shareholders on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering of the Securities or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company and the Selling Shareholders on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company and the Selling Shareholders on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears and the Selling Shareholders bear to (y) the fees of total underwriting discounts and commissions received by the Dealer-Manager Underwriters, in each case as set forth in Section 6 hereof actually received by the Dealer-Managertable on the cover page of the Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Shareholders or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative ' relevant intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company Company, the Selling Shareholders and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection (d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in the first sentence of this Sectionsubsection (d). The aggregate amount paid by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The Underwriters' obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Shareholders under this Section 116 shall be in addition to any liability which the Company and the Selling Shareholders may otherwise have and shall extend, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have upon the same rights terms and conditions, to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company any Underwriter within the meaning of Section 15 the Act; and the obligations of the Securities Act or Underwriters under this Section 20 6 shall be in addition to any liability that the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Exchange ActCompany (including any person who, with his consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who shall have has signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.Stat
Appears in 1 contract
Sources: Purchase Agreement (Buca Inc /Mn)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless the Initial Purchaser, and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls the Initial Purchaser within the meaning of Section 20(a) 15 of the Act or Section 20 of the Exchange Act) Maxim or any of such affiliates from and , against any and all (A) losses, claims, damages and or liabilities whatsoever, to which the Initial Purchaser or such controlling person may become subject under the Securities Act, the Exchange Act or otherwise otherwise, insofar as any such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: :
(i) any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents any Memorandum or any amendment or supplement thereto or any application or other document, or any amendment or supplement thereto, in any other solicitation material used executed by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any upon written information furnished by the Company) specifically for the purpose of qualifying any or all on behalf of the Rights or Company filed in any jurisdiction in order to qualify the Rights Shares or Rights Warrants Notes under the securities or "Blue Sky" laws of thereof or filed with any state securities association or other jurisdiction securities exchange (any such application, document or information being hereinafter called a “Blue Sky each an "Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information"); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.or
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplementstate, in any other solicitation material used by the Company Memorandum or authorized by it for use in connection with the Rights Offering, any amendment or in supplement thereto or any Blue Sky Application, any a material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse, as incurred, the Initial Purchaser and each such controlling person for any legal or other expenses reasonably incurred by the Initial Purchaser or such controlling person in each connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; provided, however, the Company will not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage, or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in any Memorandum or any amendment or supplement thereto or any Application in reliance upon and in conformity with written information concerning the Initial Purchaser furnished to the Company by the Initial Purchaser specifically for use therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have to the indemnified parties. The Company shall not be liable under this Section 9 for any settlement of any claim or action effected without its prior written consent, which shall not be unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold harmless the Company, its directors, its officers and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any Memorandum or any amendment or supplement thereto or any Application, or (ii) the omission or the alleged omission to state therein a material fact required to be stated in any Memorandum or any amendment or supplement thereto or any Application, or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Informationwritten information concerning such Initial Purchaser, and shall reimburse furnished to the Company by the Initial Purchaser specifically for use therein; and any such directorsubject to the limitation set forth immediately preceding this clause, officer or controlling Person for will reimburse, as incurred, any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person person in connection with investigating or defending against or preparing to defend against appearing as a third party witness in connection with any such loss, claim, damage, liability or action in respect thereof. This indemnity agreement will be in addition to any liability that the Initial Purchaser may otherwise have to the indemnified parties. The Initial Purchaser shall not be liable under this Section 9 for any settlement of any claim or action effected without its consent, which shall not be unreasonably withheld. The Company shall not, without the prior written consent of the Initial Purchaser, effect any settlement or compromise of any pending or threatened proceeding in respect of which the Initial Purchaser is or could have been a party, or indemnity could have been sought hereunder by the Initial Purchaser, unless such settlement (A) includes an unconditional written release of the Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as such expenses are incurredto an admission of fault, culpability or failure to act by or on behalf of the Initial Purchaser.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action for which such indemnified party is entitled to indemnification under this Section 9, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 119, such indemnified party shall promptly notify the indemnifying party of the commencement thereof in writing; but the omission to so notify the indemnifying party (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent such failure results in material prejudice to the indemnifying party and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraphs (a) and (b) above. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such lawsuit, claim or proceedingindemnified party; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it or to and/or other indemnified parties which that are different from or in addition additional to those available to the indemnifying party, or (iii) the indemnifying party (shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after receipt by the indemnifying party of notice of the institution of such action, then, in which case each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 9 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party); party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (iii) it being understood, however, that in connection with such action the indemnifying party shall not have employed be liable for the expenses of more than one separate counsel satisfactory (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Initial Purchaser in the case of paragraph (a) of this Section 9 or the Company in the case of paragraph (b) of this Section 9, representing all of the indemnified parties under such paragraph (a) or paragraph (b), as the case may be, who are parties to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim action or proceeding; actions) or (ivii) the indemnifying party shall authorize such has authorized in writing the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not After such notice from the indemnified party is a formal indemnifying party to any such lawsuitindemnified party, claim or proceeding. The the indemnifying party shall will not be liable for the costs and expenses of any settlement of any lawsuit, claim or proceeding such action effected by such indemnified party without its the prior written consent of the indemnifying party (which consent will shall not be unreasonably withheld), but if settled with unless such consent, the indemnifying indemnified party agrees, subject to the provisions of waived in writing its rights under this Section 119, to indemnify in which case the indemnified party from and against any loss, damage or liability by reason of may effect such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any a settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing without such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximconsent.
(d) The In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 9 is unavailable to, or insufficient to hold harmless, an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), each indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by an such indemnified party as a result of the such losses, claims, damages, damages or liabilities (or expenses referred to actions in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(erespect thereof) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect (i) the relative benefits received by the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, from the Rights Offering or, offering of the Notes or (ii) if such the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportions as are appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, in connection with the statements or omissions which or alleged statements or omissions that resulted in such losses, claims, damages, damages or liabilities (or expenses, as well as any other relevant equitable considerationsactions in respect thereof). The relative benefits received by the Company, Company on the one hand, hand and Maxim, the Initial Purchaser on the other hand, shall be deemed to be in the same proportion as: (x) as the total proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total discounts and commissions or other compensation received by the Dealer-ManagerInitial Purchaser with respect to the Notes purchased hereunder. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand, or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and Initial Purchaser on the other, the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or alleged statement or omission, and any other equitable considerations appropriate in the circumstances. The Company and the Dealer-Manager Initial Purchaser agree that it would not be just and equitable if the amount of such contribution pursuant to this Section 11(f) were determined by pro rata or per capita allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this Sectionparagraph (d). The Notwithstanding any other provision of this paragraph (d), the Initial Purchaser shall not be obligated to make contributions hereunder that in the aggregate exceed the total discounts, commissions and other compensation received by the Initial Purchaser under this Agreement, less the aggregate amount of losses, liabilities, claims, any damages and expenses incurred that the Initial Purchaser has otherwise been required to pay by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such reason of the untrue or alleged untrue statement statements or omission the omissions or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required omissions to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering state a material fact, and (ii) no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11paragraph (d), each Person controlling a Dealer-Manager person, if any, who controls an Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to con- tribution as the Initial Purchaser, and each director of the Company, each officer of the Company and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 1 contract
Sources: Purchase Agreement (Universal Compression Holdings Inc)
Indemnification and Contribution. (a) The In connection with each registration statement relating to the disposition of Registrable Securities, the Company agrees to shall indemnify and hold harmless and indemnify Maxim and its affiliates and any officereach of the Holders, directoreach underwriter of Registrable Securities, employee each partner, officer or agent director of Maxim each of the Holders or any such affiliates underwriter and any Person controlling each Person, if any, who controls (within the meaning of Section 20(a) of either the Securities Act or the Exchange Act) Maxim any of the Holders or any of such affiliates from and underwriter against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, under joint or several, to which any of the Securities Act Holders, such underwriter or otherwise (as incurred or suffered), any such Person may be subject arising out of or based upon: upon (iA) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or the Offer Documents prospectus included therein (or any supplement or amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of a preliminary prospectus or based upon the (B) any omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and the Company shall reimburse each of the Holders and each of such other Persons for any reasonable legal or other expenses incurred in each case solely and exclusively connection with the investigation or defense thereof (any such reimbursement to be made as such expenses are incurred); PROVIDED, HOWEVER, that the Company shall not be liable in any such instance to the extent that the any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission made in any such registration statement, preliminary prospectus or alleged omission was made prospectus (or amendment or supplement) in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and information relating to any such director, officer or controlling Person for any legal or other expenses reasonably incurred referred to above who would be indemnified by the Company or pursuant to this Section 5.05(a) furnished in writing to the Company by such Person expressly for use therein; and PROVIDED, FURTHER, that the Company shall not be liable in any such director, officer or controlling Person in connection with investigating or defending or preparing case to defend against the extent that any such loss, claim, damagedamage or liability arises out of or is based upon any alleged untrue statement or alleged omission of a material fact made in a preliminary prospectus if, at or prior to the written confirmation of the sale of any Warrant Shares, a copy of the prospectus (or the prospectus as amended or supplemented) was not sent or delivered to the person asserting any such loss, claim, damage or liability if the alleged untrue statement or action alleged omission of a material fact contained in such preliminary prospectus was corrected by the Company in the prospectus (or the prospectus as amended or supplemented) and such expenses are incurredcorrected prospectus (or the prospectus as amended or supplemented) was delivered by the Company to the Holders.
(b) In connection with each registration statement relating to the disposition of Registrable Securities, each Holder shall severally indemnify the Company, each director or officer of the Company and any Person who controls the Company (within the meaning of either the Securities Act or the Exchange Act) to the same extent as the indemnity from the Company provided in Section 5.05(a) hereof, but only with respect to information relating to such Holder furnished in writing to the Company by such Holder expressly for use in any such registration statement, preliminary prospectus or prospectus (or amendment or supplement). The maximum liability of any Holder under this Section 5.05(b) shall be limited to the aggregate amount of all sales proceeds actually received by such Holder upon the sale of such Holder's Registrable Securities in connection with such registration.
(c) If In case any lawsuit, claim or proceeding is brought against (including any indemnified party governmental investigation) shall be instituted involving any Person in respect of which indemnification indemnity may be sought against the indemnifying party pursuant to subsections (a) or (b) of this Section 115.05, such Person (the "indemnified party party") shall promptly notify the Person against whom such indemnity may be sought (the "indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify party") in writing and the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense thereof, including the employment of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be reasonably satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to party, and shall assume the defense payment of all fees and disbursements related to such lawsuit, claim or proceeding. In any such proceeding, such any indemnified party shall have the right to employ separate counsel retain its own counsel, but the fees and to participate in the defense expenses of such lawsuit, claim counsel shall be at the expense of such indemnified party unless (x) the indemnifying party and indemnified party shall have mutually agreed to the retention of such counsel or proceeding, (y) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall bear not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, costs fees and expenses of such more than one separate counsel firm (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iiiany local counsel) the indemnifying party shall not have employed counsel satisfactory to at any time for all such indemnified partyparties, in and that all such fees and expenses shall be reimbursed as they are incurred. In the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution case of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not firm for the indemnified party is a formal party to any parties, such lawsuit, claim or proceedingfirm shall be designated in writing by the indemnified parties. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its written consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees to notify Maxim promptlyNo indemnifying party shall, or cause Maxim to be notified promptly, without the prior written consent of the assertion indemnified party, effect any settlement of any lawsuitpending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, claim or proceeding against the Company, any unless such settlement includes an unconditional release of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, such indemnified party from all liability arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximproceeding.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for 5.05 is unavailable to the indemnified parties in respect of any reason held losses, claims, damages or liabilities referred to be unavailable from any herein, then each such indemnifying party or is insufficient to hold harmless a party party, in lieu of indemnifying such indemnified thereunder, the Company, on the one hand, and Maxim, on the other handparty, shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by as between the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control on the Company within one hand and the meaning of Section 15 of respective Holder on the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subjectother, in such proportions proportion as is appropriate to reflect the relative benefits received by fault of the Company, Company on the one hand, hand and Maxim, such Holder on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative benefits received by fault of the Company, Company on the one hand, hand and Maxim, of the respective Holder on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) such party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager each Holder agree that it would not be just and equitable if contribution pursuant to this Section 11(f5.05(d) were determined by pro rata PRO RATA allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Sectionthe immediately preceding paragraph. The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in this Section 11 the immediately preceding paragraph shall be deemed to include include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue action or alleged untrue statement or omission or alleged omissionclaim. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager 5.05(d), no Holder shall be required to contribute any amount in excess of the fees amount of all sales proceeds actually received by such Holder upon the Dealer-Manager from the Company sale of such Holder's Registrable Securities in connection with the Rights Offering and (ii) no such registration. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 1 contract
Indemnification and Contribution. (a) The Company agrees to indemnify and hold you harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which you may become subject under the Securities Act, the Exchange Act or otherwise otherwise, specifically including, but not limited to, losses, claims, damages or liabilities (as incurred or suffered), actions in respect thereof) arising out of or based upon: upon (i) any breach of any representation, warranty, agreement or covenant of the Company herein contained;
(ii) any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Registration Statement, or any amendment amendments or supplement supplements thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any untrue statement or alleged untrue statement of any material fact contained in order any Prospectus or any amendment or supplement thereto, including any Incorporated Document, or the omission or alleged omission to state therein a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and agrees to reimburse you for any legal or other expenses reasonably incurred by you in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, or Prospectus, or any such amendment or supplement thereto, in reliance upon, and in conformity with, written information relating to you furnished to the Company by you, specifically for use in the preparation thereof. The indemnity agreement in this Section 11(a) shall extend upon the same terms and conditions to, and shall inure to the benefit of, you and your affiliates and the partners, directors, officers, employees and agents of you and your affiliates, and each person or entity, if any, who controls or is under common control with, you within the meaning of the Securities Act or the Exchange Act. This indemnity agreement shall be in addition to any liabilities, which the Company may otherwise have.
(b) You agree to indemnify and hold harmless the Company against any losses, claims, damages or liabilities, joint or several, to which the Company may become subject under the Securities Act, the Exchange Act or otherwise, specifically including, but not limited to, losses, claims, damages or liabilities (or actions in respect thereof) arising out of or based upon (i) any breach of any representation, warranty, agreement or covenant of yours herein contained, (ii) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, or any amendments or supplements thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement and the Prospectus or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made misleading, in reliance upon and in conformity with the Dealer-Manager Information); case of subparagraphs (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, and (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (ivthis Section 11(b) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect extent, but only to the Rights Offeringextent, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any that such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon upon, and in conformity with with, written information furnished to the Dealer-Manager InformationCompany by you specifically for use in the Registration Statement, or any amendment or supplement thereto or in the preparation thereof, and shall you agree to reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying partyaction. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for indemnity agreement in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, 11(b) shall extend upon the Company, on the one handsame terms and conditions to, and Maxim, on the other hand, shall contribute inure to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement benefit of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers each officer of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault each director of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who . This indemnity agreement shall have signed the Registration Statement and each director of the Company shall have the same rights be in addition to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of liabilities which a claim for contribution you may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseotherwise have.
Appears in 1 contract
Indemnification and Contribution. (a) The Company agrees to will indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls each Underwriter within the meaning of Section 20(a) 15 of the Act or Section 20 of the Exchange Act) Maxim or any of such affiliates Act from and against any and all (A) losses, claims, liabilities, expenses and damages (including, but not limited to, any and liabilities whatsoeverall investigative, legal and other expenses reasonably incurred in connection with, and any and all amounts paid in settlement of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred, to which any Underwriter, or any such person may become subject under the Securities Act, the Exchange Act or otherwise (other Federal or state statutory law or regulation, at common law or otherwise, insofar as incurred such losses, claims, liabilities, expenses or suffered), arising damages arise out of or are based upon: on (i) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, the Offer Documents Registration Statement or the Prospectus or any amendment or supplement thereto, in any other solicitation material used by to the Company Registration Statement or authorized by it for use in connection with the Rights OfferingProspectus, or in any blue sky application or other document prepared or executed by the Company (or based on and filed in any written information furnished by jurisdiction in order to qualify the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state thereof or other jurisdiction filed with the Commission, (any such application, document or information being hereinafter called a “Blue Sky Application”ii) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein in it or necessary in order to make the statements therein, in the light of the circumstances under which they were made, it not misleading or (other than statements iii) any act or omissions made failure to act or any alleged act or failure to act by any Underwriter in reliance connection with, or relating in any manner to, the Shares or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, liability, expense or damage arising out of or based upon and in conformity with the Dealer-Manager Information); matters covered by clause (i) or (ii) any withdrawal or termination by above (provided that the Company of, or failure by the Company to make or consummate, the Rights Offering, shall not be liable under this clause (iii) actions taken to the extent it is finally judicially determined by a court of competent jurisdiction that such loss, claim, liability, expense or damage resulted directly from any such acts or failures to act undertaken or omitted to be taken by an indemnified party with the consent of the Company such underwriter through its gross negligence or in conformity with actions taken or omitted to be taken by the Companywillful misconduct); (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, provided that the Company will not be obligated liable to indemnify an indemnified party for any the extent that such loss, claim, damageliability, liability expense or expense pursuant damage (A) arises from the sale of the Shares in the public offering to any person by an Underwriter and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information relating to any Underwriter furnished to the preceding sentence Company by the Representatives on behalf of any Underwriter expressly for inclusion in the Registration Statement, any preliminary prospectus or the Prospectus or (B) results solely from an untrue statement of a material fact contained in, or the omission of a material fact from, such preliminary prospectus or Prospectus, which has been determined untrue statement or omission was completely corrected in the Prospectus (as then amended or supplemented) if the Company shall sustain the burden of proving that the Underwriters sold Shares to the person alleging such loss, claim, liability, expense or damage without sending or giving, at or prior to the written confirmation of such sale, a final judgment copy of the Prospectus (as then amended or supplemented) if the Company had previously furnished copies 20 21 thereof to the Underwriters within a reasonable amount of time prior to such sale or such confirmation, and the Underwriters failed to deliver the corrected Prospectus, if required by a court of competent jurisdiction law to have resulted directly from willful misconduct so delivered it and if delivered would have been a complete defense against the person asserting such loss, claim, liability, expense or gross negligence on damage. This indemnity agreement will be in addition to any liability that the part of any indemnified partyCompany might otherwise have.
(b) The Dealer-Manager shall Each Underwriter will indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which each director of the Company or any such directorand each officer of the Company who signs the Registration Statement to the same extent as the foregoing indemnity from the Company to each Underwriter, officer or controlling Person may become subject, under the Securities Act or otherwise, but only insofar as such losslosses, claimclaims, damageliabilities, liability expenses or action arises damages arise out of, of or is are based upon: (i) on any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon on and in conformity with the Dealer-Manager Information, and shall reimburse information relating to any Underwriter furnished to the Company and by the Representatives on behalf of any such directorUnderwriter expressly for use in the Registration Statement, officer the Preliminary Prospectus or controlling Person the Prospectus. This indemnity will be in addition to any liability that each Underwriter might otherwise have; provided, however, that in no case shall any Underwriter be liable or responsible for any legal or other expenses reasonably incurred amount in excess of the underwriting discounts and commissions received by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredUnderwriter.
(c) If Any party that proposes to assert the right to be indemnified under this Section 6 will, promptly after receipt of notice of commencement of any lawsuit, claim or proceeding is brought action against any indemnified such party in respect of which indemnification may a claim is to be sought made against the an indemnifying party pursuant to or parties under this Section 116, notify each such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuitaction, claim or proceeding; providedenclosing a copy of all papers served, however, that but the failure omission so to notify the such indemnifying party shall will not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under the foregoing provisions of this Section 116 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. In case If any such lawsuit, claim or proceeding shall be action is brought against any indemnified party and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingits commencement, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, and, to the extent that it elects by delivering written notice to the indemnified party promptly after written receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel satisfactory to the indemnified party, and after notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuitdefense, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall the indemnifying party will not be satisfactory liable to the indemnified party in for any legal or other expenses except as provided below and except for the exercise reasonable costs of its reasonable judgment. Notwithstanding investigation subsequently incurred by the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall in connection with the defense. The indemnified party will have the right to employ separate its own counsel in any such action, but the fees, expenses and to participate in the defense other charges of such lawsuit, claim or proceeding, and counsel will be at the indemnifying party shall bear the reasonable fees, costs and expenses expense of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; unless (ii1) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an employment of counsel by the indemnified party and has been authorized in writing by the indemnifying party, and such (2) the indemnified party shall have has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or to other indemnified parties which that are different from or in addition to those available to the 21 22 indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party shall will not have the right to direct the defense of such action on behalf of the indemnified party); ) or (iii4) the indemnifying party shall has not have in fact employed counsel satisfactory to such indemnified party, in assume the exercise defense of such indemnified party’s reasonable judgment, to represent such indemnified party action within a reasonable time after receiving notice of the institution commencement of any such lawsuitthe action, claim or proceeding; or (iv) in each of which cases the indemnifying party shall authorize such indemnified party to employ separate reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying partyparty or parties. The foregoing indemnification commitments It is understood that the indemnifying party or parties shall apply whether not, in connection with any proceeding or not related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all such indemnified party is a formal party to any or parties. All such lawsuitfees, claim or proceeding. The disbursements and other charges will be reimbursed by the indemnifying party shall promptly as they are incurred. An indemnifying party will not be liable for any settlement of any lawsuit, action or claim or proceeding effected without its written consent (which consent will not be unreasonably withheld), but if settled with such consent, the . No indemnifying party agreesshall, subject without the prior written consent of each indemnified party, settle or compromise or consent to the provisions entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 116 (whether or not any indemnified party is a party thereto), to indemnify the unless such settlement, compromise or consent includes an unconditional release of each indemnified party from and against any loss, damage all liability arising or liability by reason that may arise out of such settlement. The Company agrees to notify Maxim promptlyclaim, action or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximproceeding.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs of this Section 11 6 is applicable in accordance with its terms but for any reason is held to be unavailable from any indemnifying party the Company or is insufficient to hold harmless a party indemnified thereunderthe Underwriters, the Company, on Company and the one hand, and Maxim, on the other hand, shall Underwriters will contribute to the aggregate total losses, claims, damagesliabilities, liabilities expenses and expenses of the nature contemplated by such indemnification provision damages (including any investigationinvestigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims claim asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, persons other than Maximthe Underwriters, who may also be liable for contribution, including Persons such as persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution) as incurred to which the Company and Maxim any one or more of the Underwriters may be subject, subject in such proportions proportion as is shall be appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Underwriters on the other. The relative benefits received by the Company on the one hand and the Underwriters on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the Rights Offering oroffering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, if such in each case as set forth in the table on the cover page of the Prospectus. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to above in the foregoing sentence but also the relative fault of the Company, on the one hand, and Maximthe Underwriters, on the other handother, in connection with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damagesliability, liabilities expense or expensesdamage, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.well
Appears in 1 contract
Sources: Underwriting Agreement (Bay Apartment Communities Inc)
Indemnification and Contribution. (a) The Company agrees to indemnify, defend and hold harmless the Underwriter, its directors and indemnify Maxim officers and employees, its affiliates that participate in the offering and any officersale of the Shares, directoreach person, employee or agent of Maxim or any such affiliates and any Person controlling (if any, who controls the Underwriter within the meaning of Section 20(a) 15 of the Securities Act or Section 20 of the Exchange Act) Maxim , and each Selling Stockholder and its affiliates, directors and officers and employees, and each person, if any, who controls such Selling Stockholder within the meaning of Section 15 of the Securities Act or any Section 20 of such affiliates the Exchange Act, from and against any and all (A) losses, claims, damages and or liabilities whatsoeverto which such party may become subject, under the Securities Act or otherwise (as incurred or sufferedincluding in settlement of any litigation if such settlement is effected with the written consent of the Company), arising insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement, or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under omission from the securities laws of any state or other jurisdiction (any such applicationRegistration Statement, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but or (ii) an untrue statement or alleged untrue statement of a material fact contained in each the Time of Sale Disclosure Package, the Final Prospectus, or any Issuer Free Writing Prospectus or the omission or alleged omission to state therein, a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and will reimburse such party for any legal or other expenses reasonably incurred by such party in connection with evaluating, investigating or defending against such loss, claim, damage, liability or action; provided, however, that such indemnity shall not inure to the benefit of the Underwriter (or any person controlling the Underwriter) in any such case solely and exclusively to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Time of Sale Disclosure Package, the Final Prospectus, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by (x) the Underwriter specifically for use in the preparation thereof, which written information is described in Section 7(f) or (y) any Selling Stockholder as to the Selling Stockholder Information provided by such Selling Stockholder; and provided, further, that such indemnity shall not inure to the benefit of the Underwriter (or any person controlling the Underwriter) in any such case to the extent that any such loss, claim, damage, liability or action resulted primarily from the Underwriter’s willful misconduct or gross negligence.
(b) Each Selling Stockholder will, severally and not jointly, indemnify, defend and hold harmless the Underwriter against any losses, claims, damages or liabilities to which the Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Time of Sale Disclosure Package, any Prospectus, the Final Prospectus, or any amendment or supplement thereto or any Issuer Free Writing Prospectus in reliance upon and in conformity with the Dealer-Manager InformationSelling Stockholder Information furnished to the Company by such Selling Stockholder expressly for use therein, (ii) any inaccuracy in the representations and warranties of such Selling Stockholder contained herein, or (iii) any failure of such Selling Stockholder to perform its obligations hereunder or under law, and shall will reimburse the Company and any such director, officer or controlling Person Underwriter for any legal or other expenses reasonably incurred by it in connection with evaluating, investigating or defending against such loss, claim, damage, liability or action; provided, however, that the Selling Stockholders shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Time of Sale Disclosure Package, any Prospectus, the Final Prospectus, or any amendment or supplement thereto or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Underwriter specifically for use in the preparation thereof, which written information as described in Section 7(f); provided, further, that the aggregate liability of any Selling Stockholder under the indemnity provisions of this section and under the contribution provisions of Section 7(e) shall be limited to an amount equal to the total net proceeds (after deducting underwriter discounts and commissions) to such Selling Stockholder from the sale of Shares sold by such Selling Stockholder.
(c) The Underwriter will indemnify, defend and hold harmless the Company and its affiliates, directors and officers, the Selling Stockholders and its affiliates, directors and officers and employees, and each person, if any, who controls the Company or a Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any losses, claims, damages or liabilities to which such directorparty may become subject, officer under the Securities Act or controlling Person otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Underwriter), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Time of Sale Disclosure Package, any Prospectus, the Final Prospectus, or any amendment or supplement thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Time of Sale Disclosure Package, the Final Prospectus, or any amendment or supplement thereto or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by the Underwriter specifically for use in the preparation thereof, which written information is described in Section 7(f), and will reimburse such party for any legal or other expenses reasonably incurred by such party in connection with investigating or evaluating, investigating, and defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredaction. The obligation of the Underwriter to indemnify the Company or the Selling Stockholders (including any controlling person, affiliate, director or officer thereof) shall be limited to the amount of the underwriting discount applicable to the Shares to be purchased by the Underwriter hereunder actually received by the Underwriter.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) If above of notice of the commencement of any lawsuitaction, claim or proceeding is brought against any such indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which that it may have under this Section 11 to any indemnified party except to the extent that it such indemnifying party has been materially prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11failure. In case any such lawsuit, claim or proceeding action shall be brought against any indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceedingin, and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after written notice from the indemnifying party to such indemnified party of the indemnifying party, ’s election so to assume the defense of thereof, the indemnifying party shall not be liable to such lawsuit, claim indemnified party under such subsection for any legal or proceeding other expenses subsequently incurred by such indemnified party in connection with counsel of its choice at its expensethe defense thereof; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or to other indemnified parties which that are different from or in addition to those available to the indemnifying party, (ii) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party shall will not have the right to direct the defense of such action on behalf of the indemnified party); , or (iii) the indemnifying party shall has not have in fact employed counsel reasonably satisfactory to such the indemnified party, in party to assume the exercise defense of such indemnified party’s reasonable judgment, to represent such indemnified party action within a reasonable time after receiving notice of the institution commencement of the action, the indemnified party shall have the right to employ a single counsel to represent it and any such lawsuitothers entitled to indemnification pursuant to this section in any claim in respect of which indemnity may be sought under subsection (a), claim or proceeding; (b) or (ivc) of this section, in which event the reasonable fees and expenses of such separate counsel shall be borne by the indemnifying party shall authorize such indemnified party or parties and reimbursed to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceedingparties as incurred. The indemnifying party under this section shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (written consent, which consent will shall not unreasonably be unreasonably conditioned, delayed or withheld), but if settled with such consentconsent or if there be a final judgment for the plaintiff, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the indemnified party from and against any loss, damage claim, damage, liability or liability expense by reason of such settlementsettlement or judgment. The Company agrees to notify Maxim promptlyNo 18 Quest Resource Holding Corporation Resale Offering Underwriting Agreement indemnifying party shall, or cause Maxim to be notified promptly, without the prior written consent of the assertion indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is a party or could be named and indemnity was or would be sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(de) The If the indemnification provided for in this section is unavailable or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above, then the applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to includesubsection (a), subject to the limitations set forth (b) or (c) above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(ei) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company and Selling Stockholders on the one hand, hand and Maxim, the Underwriter on the other hand, from the Rights Offering or, offering and sale of the Shares or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company and the Selling Stockholders on the one hand, hand and Maxim, the Underwriter on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, Selling Stockholders on the one hand, hand and Maxim, the Underwriter on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, after deducting underwriting discounts and commissions but before deducting expenses) received by the Company bears Selling Stockholders bear to (y) the fees of total underwriting discount and commissions received by the Dealer-Manager Underwriter, in each case as set forth in Section 6 hereof actually received by the Dealer-Managertable on the cover page of the Final Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, the Selling Stockholders or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriter and the parties’ relative relevant intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company Company, the Selling Stockholders and the Dealer-Manager Underwriter agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f) subsection were to be determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in the first sentence of this Sectionsubsection. The aggregate amount paid by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 subsection shall be deemed to include any reasonable legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, action or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omissionthat is the subject of this subsection. Notwithstanding the provisions of this Section 11: (i) subsection, the Dealer-Manager Underwriter shall not be required to contribute any amount in excess of the fees amount of the underwriting discounts and commissions applicable to the Shares to be purchased by the Underwriter hereunder actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person Underwriter. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. .
(f) For purposes of this Section 11Agreement, each Person controlling a Dealer-Manager within the meaning Underwriter confirms, and the Company acknowledges, that there is no information concerning the Underwriter furnished in writing to the Company by the Underwriter specifically for preparation of Section 15 or inclusion in the Registration Statement, the Time of Sale Disclosure Package, the Final Prospectus or any Issuer Free Writing Prospectus, other than the statement set forth in the last paragraph on the cover page of the Securities Act or Section 20 Prospectus, the marketing and legal names of the Exchange Act shall have Underwriter, and the same rights to contribution statements set forth in the “Underwriting” section of the Registration Statement, the Time of Sale Disclosure Package, and the Final Prospectus only insofar as such Dealerstatements relate to the amount of selling concession and re-Manager, and each Personallowance, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Actto over-allotment, each officer of the Company who shall have signed the Registration Statement stabilization and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution related activities that may be made against another party or parties, notify each party or parties from whom contribution may be sought, but undertaken by the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseUnderwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Quest Resource Holding Corp)
Indemnification and Contribution. (a) The Company agrees to shall indemnify and hold harmless the Standby Underwriter, each of its Subsidiaries, officers, directors, employees, agents and indemnify Maxim counsel, and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls the Standby Underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person Standby Underwriter may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage or liability (or action with respect thereto) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact made by the Company in Section 1 or 2 hereof, or (ii) any untrue statement or alleged untrue statement of a material fact contained (A) in the Effective or Final Prospectus or any amendment or supplement thereto, or (B) in any blue sky application or other document executed by the Company specifically for that purpose or based upon information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Securities under the securities laws thereof (any such application, document or information being hereinafter called a "Blue Sky Application"), or (iii) the omission or alleged omission to state in the Registration Statement. any Pre-Effective Prospectus, the Effective or Final Prospectus or any amendment or supplement thereto or in any Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and the Company shall reimburse the Standby Underwriter for any reasonable legal or reasonable other expenses as incurred by the Standby Underwriter in connection with investigating or defending against or appearing as a third party witness in connection with any such loss, claim, damage, liability or action arises action, notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case the person receiving them shall promptly refund them; provided, however, that the Company shall not be liable in any such case to the extent, but only to the extent, that any such loss, claim, damage or liability arising out of, of or is based upon: upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Standby Underwriter specifically for use in the preparation of the Registration Statement, any Pre-Effective Prospectus, the Effective or Final Prospectus or any amendment or supplement thereto, or any Blue Sky Application; and provided further, that with respect to any untrue statement or omission or alleged untrue statement or omission made in any Pre-Effective Prospectus, the indemnity agreement contained in this paragraph shall not inure to the benefit of any Standby Underwriter to the extent that any such loss, claim, damage, liability or expense of the Standby Underwriter or controlling person results from the fact that a copy of the Final Prospectus was not sent or given to such person at or prior to the written confirmation of sale of the Underwritten Securities as required by the Securities Act, and if the untrue statement or omission has been corrected in the Final Prospectus, unless such failure to deliver the Final Prospectus was a result of noncompliance by the Company with its obligations under Section 4(c) hereof.
(b) The Standby Underwriter shall indemnify and hold harmless the Company against any loss, claim, damage or liability to which the Company may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage or liability (or action with respect thereof) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained (A) in the Registration Statement, the Pre-Effective Prospectus, the Effective or Final Prospectus or any Offer Documentsamendment -------------------------------------- Troop Meis▇▇▇▇▇ ▇▇▇u▇▇▇ & ▇asi▇▇, ▇▇p or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; , or (ii) the omission or alleged omission to state in the Registration Statement, any Offer DocumentsPre-Effective Prospectus, the Effective or in Final Prospectus or any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, supplement thereto or in any Blue Sky Application, any Application a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, but except that such indemnification shall be available in each such case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager Information, Company by you specifically for use in the preparation thereof; and the Standby Underwriter shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses as and when reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating investigating, defending against, settling, compromising or defending or preparing to defend against paying any such loss, claim, damage, liability or action as such expenses are incurredaction. This indemnity agreement will be in addition to any liability which the Standby Underwriter may otherwise have.
(c) If Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of any lawsuit, claim or proceeding is brought against the commencement of any action, the indemnified party in shall, if a claim with respect of which indemnification may thereto is to be sought made against the indemnifying party pursuant to this Section 11under such subsection, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that and the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such an indemnified party otherwise than under this Section 11such subsection. In case If any such lawsuit, claim or proceeding shall be action is brought against any an indemnified party and such indemnified party party, it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; providedaction, however, that such counsel the indemnifying party shall not be satisfactory liable to the indemnified party under such subsection for any legal or other expenses subsequently incurred by the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume connection with the defense thereof other than reasonable costs of such lawsuitinvestigation, claim or proceeding, such indemnified party except that you shall have the right to employ counsel to represent you against the Company under such subsection if, in your reasonable judgment, it is advisable for you to be represented by separate counsel and to participate in the defense of such lawsuit, claim or proceedingcounsel, and the indemnifying party shall bear in that event the reasonable fees, costs legal fees and expenses of one such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen be paid by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsection 6(a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal subsection (a) or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(eb) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
above (fc) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, on Company and the one hand, and Maxim, on the other hand, Standby Underwriter from the Rights Offering oroffer and sale of the Securities, or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company on the one hand, and Maximthe Standby Underwriter, on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative respective benefits received by the Company and the Standby Underwriter shall be deemed to be in the same proportion that the total net proceeds from the offer and sale of the Underwritten Securities (before deducting expenses) received by the Company, on the one hand, and Maximthe total standby fees received by the Standby Underwriter, on the other hand, shall be deemed bear to be one another, in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager each ease as set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) table on the fees cover page of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-ManagerFinal Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Standby Underwriter and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Standby Underwriter agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection 6(d) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in the first sentence of this Sectionsubsection (d). The aggregate amount paid by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or -------------------------------------- Troop Meis▇▇▇▇▇ ▇▇▇u▇▇▇ & ▇asi▇▇, ▇▇p liabilities referred to above in the first sentence of this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), or the Standby Underwriter shall not be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the Underwritten Units purchased by it and distributed to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages that the Standby Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) 11 of the Securities Act) shall be entitled to contribution contributions from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any Each party entitled to contribution will, promptly after receipt agrees that upon the service of notice of commencement of a summons or other initial legal process upon it in any action, suit or proceeding action instituted against such party in it with respect of to which a claim for contribution may be made against another party or partiessought, notify each it shall promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to so notify such party or parties of any such service shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have hereunder or otherwise (except as specifically provided in Section 6(c) above).
(e) The obligations of the Company under this Section 11(f) or otherwise6 shall be in addition to any liability that the Company may otherwise have, and shall extend, upon the same terms and conditions, to each person, if any, who controls any Standby Underwriter within the meaning of the Securities Act. The obligations of the Standby Underwriter under this Section 6 shall be in addition to any liability that the Standby Underwriter may otherwise have, and shall extend, upon the same terms and conditions, to each director of the Company (including any person who, with his consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 1 contract
Sources: Standby Underwriting Agreement (Nam Tai Electronics Inc)
Indemnification and Contribution. (a) The Company agrees to hold harmless Atmos Energy and indemnify Maxim the Issuer, jointly and its affiliates and any officerseverally, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the CompanyUnderwriter, its directors, officers, directors agents, affiliates and employees, each of its directors employees and each Personperson, if any, who controls the Company Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereofthereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Bonds), to which the Company or any such Underwriter, director, officer officer, agent, affiliate, employee or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained in (A) in any Offer Documentsthe Registration Statement, the Preliminary Prospectus, the Pricing Package, the Intex File, the Prospectus or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or supplement thereto and (B) any Issuer Free Writing Prospectus or in any Blue Sky Application; amendment or supplement thereto or (ii) the omission or alleged omission to state in the Registration Statement, the Preliminary Prospectus, the Pricing Package, the Intex File, the Prospectus or any Offer Documents, Issuer Free Writing Prospectus or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Applicationsupplement thereto, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company Underwriter and any each such director, officer officer, employee, agent, affiliate or controlling Person person promptly upon demand for any legal or other expenses reasonably incurred by the Company or any such Underwriter, director, officer officer, employee, agent, affiliate or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that Atmos Energy and the failure so to notify the indemnifying party Issuer shall not relieve the indemnifying party from be liable in any obligation or liability which it may have under this Section 11 except such case to the extent that it has been prejudiced any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Preliminary Prospectus, the Pricing Package, the Prospectus, any Issuer Free Writing Prospectus or in any material respect by such failure amendment or supplement thereto, in reliance upon and in any event shall not relieve conformity with the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying partyUnderwriter Provided Information. The foregoing indemnification commitments shall apply whether or not the indemnified party indemnity agreement is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights liability which Atmos Energy and the Issuer may otherwise have to the Underwriter or to any indemnified parties may have under common law director, officer, employee, agent, affiliate or otherwise but shall supersede, amend and restate, retroactively, controlling person of the rights to indemnification, reimbursement and contribution provided for under the Engagement LetterUnderwriter.
(fb) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to The Underwriter shall indemnify and hold harmless a party indemnified thereunder, Atmos Energy and the Company, on the one handIssuer, and Maximeach of their respective directors, on the other handmanagers, shall contribute to the aggregate lossesofficers, claims, damages, liabilities agents and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection withemployees, and any amount paid in settlement ofeach person, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maximif any, who may also be liable for contribution, including Persons who control controls Atmos Energy or the Company Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers from and against any loss, claim, damage, liability or expense (including reasonable attorney’s fees and expenses relating to investigating or defending or preparing to defend), or any action in respect thereof, to which Atmos Energy or the Issuer, or any such director, manager, officer, employee, agent, affiliate or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Preliminary Prospectus, the Pricing Package, the Prospectus or any Issuer Free Writing Prospectus or in any amendment or supplement thereto, or (ii) the omission or alleged omission to state in the Registration Statement, the Preliminary Prospectus, the Pricing Package, the Prospectus or any Issuer Free Writing Prospectus or in any amendment or supplement thereto, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning the Underwriter furnished to Atmos Energy through the Underwriter by or on behalf of the Company who signed Underwriter specifically for inclusion therein, which information is limited to the Registration Statement and directors information set forth in Schedule IV of this Agreement (“Underwriter Provided Information”). The foregoing indemnity agreement is in addition to any liability that the Underwriter may otherwise have to the Atmos Energy, or any such director, officer, employee, agent, affiliate or controlling person.
(c) Promptly after receipt of notice by an indemnified party under this Section 11 of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 11, notify the indemnifying party in writing of the Companyclaim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 11 except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 11. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party 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 thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 11 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the indemnified party shall have the right to employ such other counsel as the indemnified party may deem necessary, and the indemnifying party shall bear the reasonable legal or other expenses of such other counsel if (i) the indemnifying party shall have agreed; (ii) the indemnifying party has failed within a reasonable time to assume the defense of and retain counsel reasonably satisfactory to the indemnified party; or (iii) the named parties in any such proceeding (including any impleaded parties) include both the indemnified party and the indemnifying party, and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them; provided, further, however, that the indemnifying party shall not, in connection with any one such claim or action or separate but substantially similar or related claims or actions in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the legal or other expenses of more than one separate firm of attorneys (in addition to one local counsel in each jurisdiction) for all of the indemnified parties, which firm shall be designated in writing by Atmos Energy or the Underwriter, as incurred applicable, and that all such legal or other expenses shall be reimbursed as they are incurred. No indemnifying party shall (i) without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which the Company and Maxim indemnification or contribution may be subjectsought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, provided that such unconditional release may be subject to parallel release by a claimant or plaintiff of such indemnified party, and does not include any findings of fact or admissions of fault or culpability as to the indemnified party, or (ii) be liable for any settlement of any such action effected without its written consent, but if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 11 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 11(a) or 11(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such proportions indemnified party, contribute to the amount paid or payable by such indemnified party as is a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the CompanyAtmos Energy, on the one hand, and Maximthe Underwriter, on the other handother, from the Rights Offering or, offering of the Bonds or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the CompanyAtmos Energy, on the one hand, and Maximthe Underwriter, on the other handother, in connection with respect to the statements or omissions which that resulted in such lossesloss, claimsclaim, damagesdamage or liability, liabilities or expensesaction in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by Atmos Energy or the CompanyIssuer, on the one hand, and Maximthe Underwriter, on the other handother, with respect to such offering shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Bonds purchased under this Underwriting Agreement (before deducting expenses) received by Atmos Energy and the Company bears to (y) the fees of the Dealer-Manager Issuer, as set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each table on the cover page of the CompanyProspectus, on the one hand, and Maximthe total underwriting discounts and commissions received by the Underwriter with respect to the aggregate principal amount of Bonds purchased under this Underwriting Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand, . The relative fault shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by Atmos Energy and the Company Issuer or Maxim (which consists solely and exclusively the Underwriter, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Atmos Energy, the Issuer and the Dealer-Manager Underwriter agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f11(d) were to be determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Sectionherein. The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 11 11(d) shall be deemed to include include, for purposes of this Section 11(d), any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such action. Notwithstanding the provisions of this Section 11(d), the Underwriter shall not be required to contribute any amount in excess of the amount by which the total underwriting discount and commission received by the Underwriter with respect to the offering of the Bonds underwritten by it exceeds the amount of any damages that the Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (Atmos Energy Kansas Securitization I, LLC)
Indemnification and Contribution. (a) The Company Depositor agrees to indemnify and hold harmless each of the Underwriters and indemnify Maxim and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates Securities Act from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereofthereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Certificates), to which the Company such Underwriter or any such director, officer or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Registration Statement, or in any such amendment thereof or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in the Registration Statement or any Offer Documents, amendment thereof or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any supplement thereto a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission was made to state in reliance upon and the Prospectus or any amendment thereof or supplement thereto a material fact required to be stated therein or necessary to make the statements therein, in conformity with the Dealer-Manager Informationlight of the circumstances under which they were made, not misleading, and shall reimburse the Company such Underwriter and any each such director, officer or controlling Person person promptly upon demand for any legal or other expenses reasonably incurred by the Company such Underwriter or any such director, officer or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Depositor shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus, or any amendment thereof or supplement thereto, or the Registration Statement, or any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein, it being understood that the only information furnished by such Underwriter or on behalf of any such Underwriter for use in connection with the preparation of the Registration Statement or the Prospectus is described in Section 8(e) hereof. The foregoing indemnity agreement is in addition to any liability which the Depositor may otherwise have to each Underwriter or any controlling person of each Underwriter.
(b) Each Underwriter, agrees to indemnify and hold harmless the Depositor, each of their directors, each of the officers of the Depositor who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the Securities Act against any and all loss, claim, damage or liability, or any action in respect thereof, to which the Depositor or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereof or supplement thereto, (ii) the omission or alleged omission to state in the Registration Statement or any amendment thereof or supplement thereto a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission to state in the Prospectus, or any amendment thereof or supplement thereto a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of the Underwriter specifically for inclusion therein, and shall reimburse the Depositor and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Depositor or any director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The only information furnished by the Underwriters or on behalf of the Underwriter for use in connection with the preparation of the Registration Statement or the Prospectus is described in Section 8(e) hereof. The foregoing indemnity agreement is in addition to any liability which the Underwriters may otherwise have to the Depositor or any such director, officer or controlling person.
(c) If any lawsuit, claim or proceeding is brought against Promptly after receipt by any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to under this Section 118 of notice of any claim or the commencement of any action, such indemnified party shall promptly shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the an indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 8 except to the extent that it has been materially prejudiced in any material respect by such failure and in and, provided further, that the failure to notify any event indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 118. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; providedaction, howeverexcept to the extent provided in the next following paragraph, that such counsel the indemnifying party shall not be satisfactory liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding, such investigation. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense of such lawsuitthereof, claim or proceeding, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay be at the expense of such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) ifindemnified party unless: (i) the use of counsel chosen employment thereof has been specifically authorized by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interestin writing; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by such counsel that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (and in which case the indemnifying party shall not have the right to direct the defense reasonable judgment of such action on behalf of the counsel it is advisable for such indemnified party)party to employ separate counsel; or (iii) the indemnifying party shall not have employed has failed to assume the defense of such action and employ counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgmentwhich case, to represent if such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) notifies the indemnifying party shall authorize such indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not , the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to one local counsel per jurisdiction) at any time for all such indemnified parties, which firm shall be designated in writing by the applicable Underwriter, if the indemnified parties under this Section 8 consist of the Underwriters or any of its respective controlling persons, or the Depositor, if the indemnified parties under this Section 8 consist of the Depositor or any of the Depositor's directors, officers or controlling persons. Each indemnified party, as a condition of the indemnity agreements contained in Sections 8(a) and (b), shall use its best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall be liable for any settlement of any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage loss or liability by reason of such settlementsettlement or judgment. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of Notwithstanding the foregoing within paragraph, if at any time an indemnified party shall have requested an indemnifying party to reimburse the meaning indemnified party for fees and expenses of Section 20(a) of counsel, the Exchange Act, arising out of or relating the Rights Offering. The Company further indemnifying party agrees that it shall be liable for any settlement of a lawsuit, claim or any proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing effected without its written consent if (i) such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling settlement is entered into more than thirty (within the meaning of Section 20(a30) days after receipt by such indemnifying party of the Exchange Actaforesaid request and (ii) Maximsuch indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Sections 8(a) or (b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Depositor and the related Underwriter from the offering of the Certificates or (ii) if the allocation provided by clause (i) above is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 8(c), in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Depositor and the related Underwriter with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits of the related Underwriter and the Depositor shall be deemed to be in such proportion as the total net proceeds from the offering (before deducting expenses) received by the Depositor bear to the total underwriting discounts and commissions received by the related Underwriter from time to time in negotiated sales of the related Certificates. The relative fault of the related Underwriter and the Depositor shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Depositor or by the related Underwriter, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission and other equitable considerations. The Depositor and each of the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purposes) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the lossesloss, claimsclaim, damagesdamage or liability, liabilities or expenses action in respect thereof, referred to above in the immediately preceding paragraph this Section 8(d) shall be deemed to include, subject to the limitations set forth abovefor purposes of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend investigating or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions For purposes of this Section 11: (i) the Dealer-Manager 8, in no case shall any Underwriters be required to contribute responsible for any amount in excess of (x) the fees actually amount received by the Dealer-Manager from the Company such Underwriter in connection with its resale of the Rights Offering and related Certificates over (iiy) no Person the amount paid by such Underwriter to the Depositor for the related Certificates by such Underwriter hereunder. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 .
(e) Each of the Securities Act or Section 20 Underwriters confirms that the information set forth in the Prospectus Supplement under the heading "Method of the Exchange Act shall have the same rights to contribution Distribution" (as such Dealer-Managerinformation relates to the Underwriter) is correct, and each Person, if any, who controls the Company within parties hereto acknowledge that such information constitutes the meaning only information furnished in writing by or on behalf of Section 15 such Underwriter for use in connection with the preparation of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of or the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseProspectus.
Appears in 1 contract
Sources: Underwriting Agreement (Synthetic Fixed Income Securities Inc)
Indemnification and Contribution. (a) The Company agrees to Each of DFS and the Depositor shall, jointly and severally, indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange ActAct as follows:
(i) Maxim or any of such affiliates from and against any and all (A) lossesloss, claimsliability, damages claim, damage and liabilities expense whatsoever, under the Securities Act or otherwise (as incurred or suffered)incurred, arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement (or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering), or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); misleading;
(ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, against any and all reasonable legal expenses) incurred loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in connection with investigatingsettlement of any litigation, preparing to defend or defending any lawsuit, claim investigation or other proceedingproceeding by any governmental agency or body, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for claim whatsoever based upon any loss, claim, damage, liability such untrue statement or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or severalomission, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity omission, if such settlement is effected with the Dealer-Manager Information, written consent of the Depositor and DFS (which consent shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend not be unreasonably withheld); and
(iii) against any such lossand all expense whatsoever (including, claim, damage, liability or action as such expenses are incurred.
(csubject to Section 7(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedinghereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel fees and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use disbursements of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (iiRepresentative) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this Section 7 shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made (A) in reliance upon and in conformity with written information furnished to the Depositor by the Representative expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) and set forth in the Prospectus and in the Prospectus Supplement, in each case as specified in the related Terms Agreement, or (B) in any ABS Filing or any amendment or supplement thereof, except to the extent that any untrue statement or alleged omission. Notwithstanding untrue statement therein or omission therefrom results (or is alleged to have resulted) from an error (a "Pool Error") in the provisions of this Section 11: (i) information concerning the Dealer-Manager shall be required to contribute any amount in excess characteristics of the fees actually received Receivables furnished by the Dealer-Manager from Depositor to the Company Underwriter in connection with writing or by electronic transmission that was used in the Rights Offering preparation of any Computational Materials or ABS Term Sheets (or amendments or supplements thereof) included in such ABS Filing (or amendment or supplement thereof).
(b) Each Underwriter severally agrees to indemnify and (ii) no Person guilty of fraudulent misrepresentation (within hold harmless the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11Depositor and DFS, each Person controlling a Dealer-Manager of their respective directors, each of their respective officers who signed the Registration Statement, and each person, if any, who controls the Depositor and DFS, respectively, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of the Company who shall have signed this Section 7, as incurred, but only with respect to (i) untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and each director of in conformity with written information furnished to the Company shall have Depositor through the same rights to contribution as Representative expressly for use in the CompanyRegistration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto), subject in each case to clauses (i) and as specified in the related Terms Agreement, or (ii) of any Computational Materials or ABS Term Sheets (or amendments or supplements thereof) furnished to the immediately preceding sentence. Any Depositor by such Underwriter through the Representative pursuant to Section 9 or Section 10, or directly by such Underwriter, to the extent that such materials were delivered to investors by such Underwriter, and incorporated by reference in such Registration Statement or the related Prospectus or any amendment or supplement thereof (except that no such indemnity shall be available for any losses, claims, damages or liabilities, or actions in respect thereof, resulting from any Pool Error).
(c) Each indemnified party entitled shall give notice as promptly as reasonably practicable to contribution will, promptly after receipt of notice of commencement each indemnifying party of any action, suit or proceeding action commenced against such party in it with respect of to which a claim for contribution indemnity may be made against another party or parties, notify each party or parties from whom contribution may be soughtsought hereunder, but the omission failure to so notify such an indemnifying party or parties shall not relieve the party or parties from whom contribution may be sought it from any obligation liability which it or they may have under otherwise than on account of this Section 11(f7. An indemnifying party may participate at its own expense in the defense of any such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or otherwiseseparate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.
Appears in 1 contract
Sources: Underwriting Agreement (Deutsche Recreational Asset Funding Corp)
Indemnification and Contribution. (a) The Company agrees to Company, Hovnanian and each of the Guarantors will jointly and severally indemnify and hold harmless each Underwriter, its partners, directors and indemnify Maxim officers, and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates from and , against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which any Underwriter may become subject, under the Securities Act or otherwise the 1934 Act or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Registration Statement, the Prospectus, or any amendment or supplement thereto, in any other solicitation material used by the Company Issuer Free Writing Prospectus or authorized by it for use in connection with the Rights Offeringany Time of Sale Information, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or the alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements thereintherein (in the case of the Prospectus, any Issuer Free Writing Prospectus or any Time of Sale Information, in the light of the circumstances under which they were made, ) not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (including, but not limited to, will reimburse each Underwriter for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of such Underwriter in connection with investigating or defending any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company, Hovnanian and the Guarantors will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of, of or is based upon: upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents made in reliance upon and in conformity with written information furnished to the Company or Hovnanian by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8(b) hereof.
(ib) Each Underwriter will severally and not jointly indemnify and hold harmless the Company, Hovnanian, each Guarantor and their respective directors and officers and each person, if any, who controls the Company, Hovnanian or any Guarantor within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities to which the Company, Hovnanian or the Guarantors may become subject, under the Act or the 1934 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a any material fact contained (A) in any Offer Documentsthe Registration Statement, the Prospectus, or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company Issuer Free Writing Prospectus or authorized by it for use in connection with the Rights Offering any Time of Sale Information, or (B) in any Blue Sky Application; arise out of or (ii) are based upon the omission or the alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, any Issuer Free Writing Prospectus or any Time of Sale Information, in the light of the circumstances under which they were made) not misleading, but in each case solely and exclusively to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany or Hovnanian by such Underwriter through the Representatives specifically for use therein, and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the following information in the Prospectus: the second sentence of the sixth paragraph and the ninth through eleventh paragraphs under the caption “Underwriting”; provided, however, that the Underwriters shall not be liable for any losses, claims, damages or liabilities arising out of or based upon the Company’s or Hovnanian’s failure to perform its obligations under Section 5(f) of this Agreement.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this under Section 118(a) or 8(b) hereof, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which that it may have under this Section 11 8(a) or 8(b) hereof except to the extent that it has been materially prejudiced in any material respect (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure and in any event to notify the indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which that it may have to such an indemnified party otherwise than under this Section 118(a) or 8(b) hereof. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense of thereof, the indemnifying party will not be liable to such lawsuit, claim indemnified party under this Section for any legal or proceeding with counsel of its choice at its expense; provided, however, that other expenses subsequently incurred by such counsel shall be satisfactory to the indemnified party in connection with the exercise defense thereof other than reasonable costs of its reasonable judgmentinvestigation. Notwithstanding the election of the No indemnifying party to assume shall, without the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf prior written consent of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for effect any settlement of any lawsuit, claim pending or proceeding effected without its consent threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (which consent will not be unreasonably withheld), but if settled with i) includes an unconditional release of such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against all liability on any loss, damage or liability by reason claims that are the subject matter of such settlement. The Company agrees to notify Maxim promptlyaction and (ii) does not include a statement as to, or cause Maxim an admission of, fault, culpability or a failure to be notified promptly, of the assertion act by or on behalf of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The If the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) hereof, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal Section 8(a) or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
8(b) hereof (ei) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Hovnanian and the Guarantors on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering of the Securities or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Hovnanian and the Guarantors on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, damages or liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, Hovnanian and the Guarantors on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears Company, Hovnanian and the Guarantors bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-ManagerUnderwriters from the Company under this Agreement. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Company, Hovnanian and the Guarantors or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined amount paid by pro rata allocation or by any other method of allocation which does not take account an indemnified party as a result of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim that is the subject of this Section 8(d). Notwithstanding the provisions of this Section 8(d), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of The Underwriters’ obligations in this Section 118(d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company, Hovnanian and the Guarantors under this Section 8 shall be in addition to any liability that the Company, Hovnanian and the Guarantors may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager person, if any, who controls any Underwriter within the meaning of Section 15 the Act; and the obligations of the Securities Act or Underwriters under this Section 20 8 shall be in addition to any liability that the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director and officer of the Exchange Act shall have the same rights to contribution as such Dealer-ManagerCompany, Hovnanian and each PersonGuarantor and to each person, if any, who controls the Company Company, Hovnanian or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange 1934 Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 1 contract
Indemnification and Contribution. (a) The Company agrees to Issuer shall indemnify and hold harmless each Holder, such Holder’s directors, officers, employees, representatives, agents and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Holder within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates Securities Act (each, an “Indemnified Holder”), from and against any and all loss, claim, damage or liability, joint or several, or any action in respect thereof (A) lossesincluding, claimsbut not limited to, damages and liabilities whatsoeverany loss, claim, damage, liability or action relating to resales of the Registrable Securities), to which such Indemnified Holder may become subject, under the Securities Act or otherwise (otherwise, insofar as incurred any such loss, claim, damage, liability or suffered)action arises out of, arising out of or is based upon: :
(i) any untrue statement or alleged untrue statement of a material fact contained in (A) the Offer Documents Shelf Registration Statement or Prospectus or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company ; or
(or based on any written information furnished by the Companyii) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in the Shelf Registration Statement any such document a material fact required to be stated therein or necessary to make the statements therein not misleading, or the omission or alleged omission to state in order the Prospectus any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading misleading, and shall reimburse each Indemnified Holder promptly upon demand for any legal or other expenses reasonably incurred by such Indemnified Holder in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Issuer shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action (other than statements A) arises out of, or omissions is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Shelf Registration Statement or Prospectus or amendment or supplement thereto in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services written information furnished to the Company with respect Issuer by or on behalf of any Holder (or its related Indemnified Holder) in writing specifically for use therein; provided, further, that as to any preliminary Prospectus, this indemnity agreement shall not inure to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt benefit of any invoices therefore from Maxim. HoweverIndemnified Holder or any officer, the Company will not be obligated to indemnify an indemnified party for employee, representative, agent, director or controlling person of that Indemnified Holder on account of any loss, claim, damage, liability or expense action arising from the sale of the Registrable Securities sold pursuant to the preceding sentence which has been determined Shelf Registration Statement to any person by such Indemnified Holder if (i) that Indemnified Holder failed to send or give a copy of the Prospectus, as the same may be amended or supplemented, to that person within the time required by the Securities Act and (ii) the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such preliminary Prospectus was corrected in the Prospectus or a final judgment supplement or amendment thereto, as the case may be, unless in each case, such failure resulted from noncompliance by a court of competent jurisdiction the Issuer with Section 4, or (B) results from noncompliance by the Indemnified Holder with its obligations under Section 4(c) or Section 4(e). The foregoing indemnity agreement is in addition to any liability that the Issuer may otherwise have resulted directly from willful misconduct or gross negligence on the part of to any indemnified partyIndemnified Holder.
(b) The Dealer-Manager Each Holder, severally and not jointly, shall indemnify and hold harmless the CompanyIssuer, its directors, officers, directors and employees, each of its directors representatives, agents and each Personperson, if any, who controls the Company Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company Issuer or any such directorofficer, officer employee, representative, agent or controlling Person person may become subject, under the Securities Act or otherwise, insofar as any such loss, claim, damage, damage or liability or action arises out of, or is based upon: :
(i) any untrue statement or alleged untrue statement of a any material fact contained (A) in the Shelf Registration Statement or Prospectus or any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Applicationsupplement thereto; or or
(ii) the omission or the alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, Shelf Registration Statement any material fact required to be stated therein or necessary to make the statements therein not misleading, or the omission or alleged omission to state in the Prospectus any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but in each case solely and exclusively only to the extent that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationIssuer by or on behalf of such Holder (or its related Indemnified Holder) specifically for use therein, and shall reimburse the Company Issuer and any such director, officer officer, employee, representative, agent or controlling Person person promptly upon demand for any legal or other expenses reasonably incurred by the Company Issuer or any such directorofficer, officer employee or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability that any Holder may otherwise have to the Issuer and any such director, officer, employee or controlling person.
(c) If Promptly after receipt by an indemnified party under this Section 6 of notice of any lawsuit, claim or the commencement of any action or proceeding is brought against any (including a governmental investigation), the indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 116, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceeding; providedthat action;provided, however, that the failure so to notify the indemnifying party shall not relieve it from any liability that the indemnifying party may have under this Section 6 except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such an indemnified party otherwise than under this Section 116. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to so assume the defense thereof, the indemnifying party shall not be liable to the indemnified party under this Section 6 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding with counsel of its choice at its expenseinvestigation; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel to represent jointly the indemnified party and its respective directors, employees, officers and controlling persons who may be subject to participate liability arising out of any claim in respect of which indemnity may be sought by the defense of such lawsuit, claim or proceeding, and indemnified party against the indemnifying party under this Section 6 if such indemnified party shall bear have been advised in writing that the reasonable feesrepresentation of such indemnified party and those directors, costs employees, officers and controlling persons by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them, and in that event the fees and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen be paid by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not It is understood that the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for the fees and expenses of more than one separate firm (in addition to local counsel in each jurisdiction) for all indemnified parties in connection with any proceeding or related proceedings. Each indemnified party, as a condition of the indemnity agreements contained in Sections 6(a) and 6(b), shall use its reasonable best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall:
(i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld) effect any settlement of any lawsuit, pending or threatened action in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of such indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party, or
(ii) be liable for any settlement of any such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage or loss of liability by reason of such settlement. The Company agrees to notify Maxim promptly, settlement or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of judgment in accordance with this Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim6.
(d) The If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under Sections 6(a) or 6(b) above, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal Section 6(a) or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
6(b) (ei) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, from the Rights Offering orregistration of the Registrable Securities pursuant to the Shelf Registration, or (ii) if such the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages, damages or liabilities (or expenses, actions in respect thereof) as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net fault of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Issuer on the one hand or Maxim (which consists solely and exclusively of such Holder or such other indemnified party, as the Dealer-Manager Information) case may be, on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined amount paid by pro rata allocation or by any other method of allocation which does not take account an indemnified party as a result of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 6(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this Section 6(d). Notwithstanding any other provision of this Section 6(d), or the Holders of the Registrable Securities shall not be required to contribute any investigation or proceeding amount in excess of the amount by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any which the gross proceeds received by such Holders from the sale of the Registrable Securities pursuant to the Shelf Registration Statement exceeds the amount of damages which such Holders have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 116(d), each Person controlling a Dealer-Manager person, if any, who controls such indemnified party within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, indemnified party and each Personperson, if any, who controls the Company Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company Act shall have the same rights to contribution as the Company, subject Issuer.
(e) The indemnity and contribution provisions contained in each case to clauses this Section 6 shall remain operative and in full force and effect regardless of (i) and any termination of this Agreement, (ii) any investigation made by or on behalf of any Initial Purchaser, any Holder or any person controlling any Initial Purchaser or any Holder, or by or on behalf of the immediately preceding sentence. Any party entitled Issuer, its officers or directors or any person controlling the Issuer, and (iii) any sale of Registrable Securities pursuant to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseShelf Registration Statement.
Appears in 1 contract
Indemnification and Contribution. (a) A. The Company Depositor agrees to indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates Securities Act from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereofthereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Offered Certificates), to which the Company such Underwriter or any such director, officer or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Registration Statement, or in any such amendment thereof or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission was made to state therein a material fact required to be stated therein or necessary to make the statements therein, in reliance upon and in conformity with the Dealer-Manager Informationlight of the circumstances under which they were made, not misleading and shall reimburse the Company such Underwriter and any each such director, officer or controlling Person person promptly upon demand for any legal or other expenses reasonably incurred by the Company such Underwriter or any such director, officer or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Depositor shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus, or any amendment thereof or supplement thereto, or the Registration Statement, or any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein. The foregoing indemnity agreement is in addition to any liability which the Depositor may otherwise have to any Underwriter or any controlling person of any of such Underwriter. The only information furnished by the Underwriters or on behalf of the Underwriters for use
B. Each Underwriter severally agrees to indemnify and hold harmless the Depositor, each of its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the Securities Act against any and all loss, claim, damage or liability, or any action in respect thereof, to which the Depositor or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereof or supplement thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein, and shall reimburse the Depositor and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Depositor or any director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Depositor or any such director, officer or controlling person. The only information furnished by the Underwriters or on behalf of the Underwriters for use in connection with the preparation of the Registration Statement or the Prospectus is described in Section 8(I) hereof.
(c) If any lawsuit, claim or proceeding is brought against C. Promptly after receipt by any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to under this Section 118 of notice of any claim or the commencement of any action, such indemnified party shall promptly shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the an indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 8 except to the extent that it has been materially prejudiced in any material respect by such failure and in and, provided further, that the failure to notify any event indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 118. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written notice from to the extent that it wishes, jointly with any other similarly notified indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding thereof with counsel of its choice at its expense; provided, however, that such counsel shall be reasonably satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense of such lawsuitthereof, claim or proceeding, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay be at the expense of such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) ifindemnified party unless: (i) the use of counsel chosen employment thereof has been specifically authorized by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interestin writing; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by such counsel that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (and in which case the indemnifying party shall not have the right to direct the defense reasonable judgment of such action on behalf of the counsel it is advisable for such indemnified party)party to employ separate counsel; or (iii) the indemnifying party shall not have employed has failed to assume the defense of such action and employ counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgmentwhich case, to represent if such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) notifies the indemnifying party shall authorize such indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not , the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to one local counsel per jurisdiction) at any time for all such indemnified parties, which firm shall be designated in writing by the related Underwriter, if the indemnified parties under this Section 8 consist of one or more Underwriters or any of its or their controlling persons, or the Depositor, if the indemnified parties under this Section 8 consist of the Depositor or any of the Depositor's directors, officers or controlling persons. Each indemnified party, as a condition of the indemnity agreements contained in Section 8(A) and (B), shall use its best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall be liable for any settlement of any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage loss or liability by reason of such settlementsettlement or judgment. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of Notwithstanding the foregoing within paragraph, if at any time an indemnified party shall have requested an indemnifying party to reimburse the meaning indemnified party for fees and expenses of Section 20(a) of counsel, the Exchange Act, arising out of or relating the Rights Offering. The Company further indemnifying party agrees that it shall be liable for any settlement of a lawsuit, claim or any proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing effected without its written consent if (i) such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) settlement is entered into more than 30 days after receipt by such indemnifying party of the Exchange Actaforesaid request and (ii) Maxim.
(d) The amount paid or payable by an indemnified such indemnifying party as a result of shall not have reimbursed the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.accordance with
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order D. Each Underwriter agrees to provide for contribution in circumstances in the Depositor no later than two Business Days prior to the day on which the indemnification provided for in this Section 11 for any reason held Prospectus Supplement is required to be unavailable from filed pursuant to Rule 424 with a copy of any indemnifying party or Computational Materials (as defined in Section 5(E) hereof) produced by such Underwriter for filing with the Commission on Form 8-K.
E. Each Underwriter severally agrees, assuming all Seller Provided Information is insufficient accurate and complete in all material respects, to indemnify and hold harmless a party indemnified thereunderthe Depositor, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses each of the nature contemplated by such indemnification provision (including any investigation, legal Depositor's officers and other expenses incurred in connection with, directors and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in each person who controls the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company Depositor within the meaning of Section 15 of the Securities Act against any and all losses, claims, damages or Section 20 of the Exchange Actliabilities, officers of the Company who signed the Registration Statement and directors of the Company) as incurred joint or several, to which they may become subject under the Company Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement of a material fact contained in the Computational Materials provided by such Underwriter and Maxim agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred by him, her or it in connection with investigating or defending or preparing to defend any such loss, claim, damage, liability or action as such expenses are incurred. The obligations of an Underwriter under this Section 8(E) shall be in addition to any liability which such Underwriter may otherwise have. The procedures set forth in Section 8(C) shall be subjectequally applicable to this Section 8(E).
F. If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(A), (B) or (E) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such proportions indemnified party, contribute to the amount paid or payable by such indemnified party as is a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company, Depositor on the one hand, hand and Maxim, the related Underwriter on the other hand, from the Rights Offering or, offering of the related Offered Certificates or (ii) if such the allocation provided by clause (i) above is not permitted by applicable lawlaw or if the indemnified party failed to give the notice required under Section 8(C), in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Depositor on the one hand, hand and Maxim, the related Underwriter on the other hand, in connection with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damagesdamage or liability, liabilities or expensesaction in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by of the Company, on the one hand, Depositor and Maxim, on the other hand, an Underwriter shall be deemed to be in the same such proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears Depositor bear to (y) the fees total underwriting discounts and commissions as set forth on the cover page of the Dealer-Manager set forth in Section 6 hereof actually Prospectus Supplement received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseUnderwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Imc Home Equity Loan Trust 1997-7)
Indemnification and Contribution. (a) The Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless the Placement Agent, its managers, officers, directors, employees, agents and indemnify Maxim counsel, and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls the Placement Agent within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and , against any and all loss, liability, claim, damage and expense whatsoever (A) losseswhich shall include, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out for all purposes of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (includingSection 8, but not be limited to, attorneys’ fees and any and all reasonable legal expenses) expense whatsoever incurred in connection with investigating, preparing to defend or defending against any lawsuit, claim or other proceedinglitigation, commenced or threatened, whether or not resulting any claim whatsoever and any and all amounts paid in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt settlement of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability claim or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(blitigation) The Dealer-Manager shall indemnify as and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises when incurred arising out of, or is based upon: , or in connection with:
(i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentsthe Registration Statement, or in the Prospectus, or any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; applications or other documents or communications (collectively, the “Other Documents”) executed by or on behalf of the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify any of the Units under the blue sky or state securities laws thereof or filed with the Commission;
(ii) the any omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue unless such statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany with respect to the Placement Agent by the Placement Agent expressly for inclusion in the Registration Statement or the Prospectus, or any amendment or supplement thereto, or in any Other Documents, as the case may be; or
(iii) any breach of any representation, warranty, covenant or agreement of the Company contained in this Agreement. The foregoing agreement to indemnify shall be in addition to any liability the Company may otherwise have, including liabilities arising under this Agreement.
(b) The Placement Agent agrees to indemnify and hold harmless the Company, its managers, officers, directors, employees, agents and counsel, and shall reimburse each other person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, to the same extent as the foregoing indemnity from the Company to the Placement Agent as set forth in Section 8(a) of this Agreement, but only with respect to statements or omissions, if any, made in the Registration Statement or the Prospectus, or any amendment or supplement thereto, or in any Other Documents in reliance upon and any such director, officer or controlling Person for any legal or other expenses reasonably incurred in conformity with written information furnished to the Company with respect to the Placement Agent by the Company Placement Agent expressly for inclusion in the Registration Statement or the Prospectus, or any such directoramendment or supplement thereto, officer or controlling Person in connection with investigating or defending or preparing to defend against any such lossOther Documents, claim, damage, liability or action as such expenses are incurredthe case may be.
(c) If any lawsuit, claim or proceeding action is brought against any indemnified party person or entity in respect of which indemnification indemnity may be sought against the indemnifying party pursuant to Sections 8(a) or 8(b) of this Section 11Agreement, such indemnified party person or entity (the “Indemnified Party”) shall promptly notify the indemnifying party against whom indemnity may be sought (the “Indemnifying Party”) in writing of the commencement institution of such lawsuit, claim or proceeding; provided, however, that action and the failure so to notify the indemnifying party Indemnifying Party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to promptly assume the defense of such lawsuitaction, claim or proceeding with including the employment of counsel of its choice at its expense; provided, however, that such counsel shall be (reasonably satisfactory to the indemnified party in the exercise such Indemnified Party) and payment of its reasonable judgmentexpenses. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party Such Indemnified Party shall have the right to employ separate its own counsel in any such case, but the fees and to participate expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by the Indemnifying Party in connection with the defense of such lawsuit, claim action or proceeding, and the indemnifying party Indemnifying Party shall bear not have promptly employed counsel satisfactory to such Indemnified Party to have charge of the reasonable fees, costs and expenses defense of such separate counsel (and shall pay action or such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party Indemnified Party shall have reasonably concluded that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (Indemnifying Party, in any of which case events such fees and expenses shall be borne by the indemnifying party Indemnifying Party and the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) Indemnified Party. Anything in this paragraph to the indemnifying party shall not have employed counsel satisfactory to such indemnified partycontrary notwithstanding, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party Indemnifying Party shall not be liable for any settlement of any lawsuit, such claim or proceeding action effected without its written consent. The Indemnifying Party shall not, without the prior written consent of each Indemnified Party that is not released as described in this sentence, settle or compromise any action, or permit a default or consent to the entry of judgment in or otherwise seek to terminate any pending or threatened action, in respect of which indemnity may be sought hereunder (which consent will whether or not be unreasonably withheldany Indemnified Party is a party thereto), but if settled with unless such settlement, compromise, consent, the indemnifying party agrees, subject to the provisions or termination includes an unconditional release of this Section 11, to indemnify the indemnified party each Indemnified Party from and against any loss, damage or all liability by reason in respect of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximaction.
(d) The amount paid Company and the Placement Agent agree to provide for just and equitable contribution if (i) an Indemnified Party makes a claim for indemnification pursuant to Sections 8(a) or payable by an indemnified party as a result 8(b) of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, this Agreement (subject to the limitations set forth abovethereof) but it is found in a final judicial determination, not subject to further appeal, that such indemnification may not be enforced in such case, even though this Agreement expressly provides for indemnification in such case, or (ii) any legal Indemnified Party or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and Indemnifying Party seeks contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactivelythe Act, the rights to indemnificationExchange Act, reimbursement or otherwise, then the Company and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, Placement Agent shall contribute to the aggregate losses, liabilities, claims, damages, liabilities damages and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred whatsoever to which the Company and Maxim either of them may be subject, in such proportions as so that the Placement Agent is appropriate responsible for the proportion thereof equal to reflect the relative benefits received by percentage which the Company, commission to be paid per Unit set forth on the one hand, and Maxim, cover page of the Prospectus represents of the initial public offering price per Unit set forth on the other handcover page of the Prospectus and the Company is responsible for the remaining portion; provided, from the Rights Offering orhowever, if applicable law does not permit such allocation is not permitted by applicable lawallocation, in then other relevant equitable considerations such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on Company and the one hand, and Maxim, on the other handPlacement Agent, in connection with the statements or omissions facts which resulted in such losses, liabilities, claims, damages, liabilities or expenses, as well as any other relevant equitable considerationsdamages and expenses shall also be considered. The relative benefits received by the Companyfault, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net case of the fees of the Dealer-Manager set forth in Section 6 hereofan untrue statement, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Companyalleged untrue statement, on the one hand, and Maxim, on the other handomission or alleged omission, shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of by the Dealer-Manager Information) Placement Agent, and the parties’ relative intent, knowledge, access to information information, and opportunity to correct or prevent such statement statement, alleged statement, omission, or alleged omission. The Company and the Dealer-Manager Placement Agent agree that it would not be just unjust and equitable inequitable if the respective obligations of the Company and the Placement Agent for contribution pursuant to this Section 11(f) were determined by pro rata or per capita allocation of the aggregate losses, liabilities, claims, damages, and expenses or by any other method of allocation which that does not take account of reflect the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission8(d). Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraudulent misrepresentation. For purposes of this Section 118(d), each Person controlling a Dealer-Manager person, if any, who controls the Placement Agent within the meaning of Section 15 of the Securities Act or Section 20 20(a) of the Exchange Act and each manager, officer, director, partner, employee, agent and counsel of the Placement Agent shall have the same rights to contribution as such Dealer-Managerthe Placement Agent, and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 20(a) of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director manager, officer, director, partner, employee, agent and counsel of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (ithe provisions of this Section 8(d). Anything in this Section 8(d) and (iito the contrary notwithstanding, no party shall be liable for contribution with respect to the settlement of any claim or action effected without its written consent. This Section 8(d) of the immediately preceding sentence. Any party entitled is intended to supersede any right to contribution willunder the Act, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) Exchange Act or otherwise.
Appears in 1 contract
Sources: Placement Agreement (Usa Capital First Trust Deed Fund LLC)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless the Initial Purchaser and indemnify Maxim and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls the Initial Purchaser within the meaning of Section 20(a) 15 of the Act or Section 20 of the Exchange Act) Maxim or any of such affiliates from and Act against any and all (A) losses, claims, damages and or liabilities whatsoever, to which the Initial Purchaser or such controlling person may become subject under the Securities Act, the Exchange Act or otherwise otherwise, insofar as any such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: :
(i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used made by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); Section 2 hereof;
(ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a any material fact contained (A) in any Offer Documents, Memorandum or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or supplement thereto; or
(B) in any Blue Sky Application; or (iiiii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplementstate, in any other solicitation material used by the Company Memorandum or authorized by it for use in connection with the Rights Offeringany amendment or supplement thereto, or in any Blue Sky Application, any a material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse, as incurred, the Initial Purchaser and each such controlling person for any reasonable legal or other expenses incurred by the Initial Purchaser or such controlling person in each connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage, or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in any Memorandum or any amendment or supplement thereto in reliance upon and in conformity with written information concerning the Initial Purchaser furnished to the Company by the Initial Purchaser specifically for use therein. The indemnity provided for in this Section 9 will be in addition to any liability that the Company and may otherwise have to the indemnified parties. The Company shall not be liable under this Section 9 for any settlement of any claim or action effected without their prior written consent, which shall not be unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold harmless the Company, its directors and managers, as applicable, its officers and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Company or any such director, manager, officer or controlling person may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any Memorandum or any amendment or supplement thereto, or (ii) the omission or the alleged omission to state therein a material fact required to be stated in any Memorandum or any amendment or supplement thereto, or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse written information concerning such Initial Purchaser furnished to the Company by the Initial Purchaser specifically for use therein; and any such directorsubject to the limitation set forth immediately preceding this clause, officer or controlling Person for will reimburse, as incurred, any legal or other expenses reasonably incurred by the Company or any such director, manager, officer or controlling Person person in connection with investigating or defending against or preparing to defend against appearing as a third-party witness in connection with any such loss, claim, damage, liability or action in respect thereof. The indemnity provided for in this Section 9 will be in addition to any liability that the Initial Purchaser may otherwise have to the indemnified parties. The Initial Purchaser shall not be liable under this Section 9 for any settlement of any claim or action effected without their consent, which shall not be unreasonably withheld. The Company shall not, without the prior written consent of the Initial Purchaser, effect any settlement or compromise of any pending or threatened proceeding in respect of which any Initial Purchaser is or could have been a party, or indemnity could have been sought hereunder by any Initial Purchaser, unless such settlement (A) includes an unconditional written release of the Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as such expenses are incurredto an admission of fault, culpability or failure to act by or on behalf of the Initial Purchaser.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action for which such indemnified party is entitled to indemnification under this Section 9, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 119, such indemnified party shall promptly notify the indemnifying party of the commencement thereof in writing; but the omission to so notify the indemnifying party (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraphs (a) and (b) above. In case any such lawsuitaction is brought against any indemnified party, claim or proceedingand it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) the use of counsel chosen by the indemnifying party to represent such the indemnified party would present such counsel with a conflict of interest; , (ii) the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it or to and/or other indemnified parties which that are different from or in addition additional to those available to the indemnifying party, or (iii) the indemnifying party (shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after receipt by the indemnifying party of notice of the institution of such action, then, in which case each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 9 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party); party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (iii) it being understood, however, that in connection with such action the indemnifying party shall not have employed be liable for the reasonable expenses of more than one separate counsel satisfactory (in addition to one local counsel in any jurisdiction) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Initial Purchaser in the case of paragraph (a) of this Section 9 or the Company in the case of paragraph (b) of this Section 9, representing the indemnified parties under such paragraph (a) or paragraph (b), as the case may be, who are parties to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim action or proceeding; actions) or (ivii) the indemnifying party shall authorize such has authorized in writing the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments All fees and expenses reimbursed pursuant to this paragraph (c) shall apply whether or not be reimbursed as they are incurred. After such notice from the indemnified party is a formal indemnifying party to any such lawsuitindemnified party, claim or proceeding. The the indemnifying party shall will not be liable for the costs and expenses of any settlement of any lawsuit, claim or proceeding such action effected by such indemnified party without its the prior written consent of the indemnifying party (which consent will shall not be unreasonably withheld), but if settled with unless such consent, the indemnifying indemnified party agrees, subject to the provisions of waived in writing its rights under this Section 119, to indemnify in which case the indemnified party from and against any loss, damage or liability by reason of may effect such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any a settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing without such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximconsent.
(d) The In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 9 is unavailable to, or insufficient to hold harmless, an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), each indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by an such indemnified party as a result of the such losses, claims, damages, damages or liabilities (or expenses referred to actions in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(erespect thereof) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect (i) the relative benefits received by the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, from the Rights Offering or, offering of the Securities or (ii) if such the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportions as are appropriate to reflect not only the such relative benefits referred to above but also the relative fault of the Company, indemnifying party or parties on the one hand, hand and Maxim, the indemnified party on the other hand, in connection with the statements or omissions which or alleged statements or omissions that resulted in such losses, claims, damages, damages or liabilities (or expenses, as well as any other relevant equitable considerationsactions in respect thereof). The relative benefits received by the Company, Company on the one hand, hand and Maxim, any Initial Purchaser on the other hand, shall be deemed to be in the same proportion as: (x) as the total proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total discounts and commissions received by the Dealer-ManagerInitial Purchaser. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand, or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and Initial Purchaser on the other, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or alleged statement or omission, and any other equitable considerations appropriate in the circumstances. The Company and the Dealer-Manager Initial Purchaser agree that it would not be just and equitable if the amount of such contribution pursuant to this Section 11(f) were determined by pro rata or per capita allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this Sectionparagraph (d). The Notwithstanding any other provision of this paragraph (d), the Initial Purchaser shall not be obligated to make contributions hereunder that in the aggregate exceed the total discounts, commissions and other compensation received by the Initial Purchaser under this Agreement, less the aggregate amount of losses, liabilities, claims, any damages and expenses incurred that the Initial Purchaser has otherwise been required to pay by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such reason of the untrue or alleged untrue statement statements or omission the omissions or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required omissions to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering state a material fact, and (ii) no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11paragraph (d), each Person controlling a Dealer-Manager person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Managerthe Initial Purchaser, and each Persondirector or manager of the Company, each officer of the Company and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company Act shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 1 contract
Sources: Purchase Agreement (Advanced Accessory Holdings Corp)
Indemnification and Contribution. (a) The Company Each of AMS and the Trust Manager, jointly and severally, agrees to hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless each Underwriter and the CompanyIssuer Trustee, its officerspartners, directors and employees, each of its directors officers and each Personperson, if any, who controls the Company such Underwriter within the meaning of Section 15 of the Securities Act, from and against any losslosses, claimclaims, damage damages or liabilityliabilities, joint or several, or any action in respect thereof, to which such Underwriter or the Company or any such director, officer or controlling Person Issuer Trustee may become subject, under the Securities Act or otherwise, insofar as such losslosses, claimclaims, damage, liability damages or action arises liabilities (or actions in respect thereof) arise out of, of or is are based upon: upon (i) any untrue statement or alleged untrue statement of a any material fact contained (A) in any Offer Documents, Registration Statement or in any such amendment arise out of or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) are based upon the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of any material fact contained in the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter or the Issuer Trustee in each connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that neither AMS nor the Trust Manager will be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to AMS or the Trust Manager by (i) any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below or (ii) ABN AMRO Bank N.V., for information inclusion in the Prospectus under the heading "Description of the Class A Bonds—Fixed-Floating Rate Swap Provider and Currency Swap Provider"; and provided, further, that with respect to any untrue statement or alleged untrue statement in or omission or alleged omission from any preliminary prospectus the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased the Class A Bonds concerned, to the extent that a prospectus relating to such Class A Bonds was required to be delivered by such Underwriter under the Securities Act in connection with such purchase and any such loss, claim, damage or liability of such Underwriter results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Class A Bonds to such person, a copy of the Prospectus if the Trust Manager had previously furnished copies thereof to such Underwriter at least 3 Business Days prior to the written confirmation of the sale of the Class A Bonds.
(b) Each Underwriter will severally and not jointly indemnify and hold harmless AMS, the Issuer Trustee and the Trust Manager, its partners, its directors and officers and each person, if any, who controls such company within the meaning of Section 15 of the Securities Act, against any losses, claims, damages or liabilities to which such company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of any material fact contained in the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Trust Manager Informationby such Underwriter through the Representative specifically for use therein, and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by AMS, the Company Issuer Trustee or any such director, officer or controlling Person the Trust Manager in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred, it being understood and agreed that the only such information furnished by the Underwriters consists of the following information in the Prospectus furnished on behalf of the Underwriters: under the caption "Plan of Distribution", (i) the concession and reallowance figures appearing in the table following the third paragraph and (ii) the seventh paragraph.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section (c) of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under subsection (a) or (b) above, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof; provided, however, that but the failure omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 11subsection (a) or (b) above. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense of thereof, the indemnifying party will not be liable to such lawsuit, claim indemnified party under this Section for any legal or proceeding with counsel of its choice at its expense; provided, however, that other expenses subsequently incurred by such counsel shall be satisfactory to the indemnified party in connection with the exercise defense thereof other than reasonable costs of its reasonable judgmentinvestigation. Notwithstanding the election of the No indemnifying party to assume shall, without the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf prior written consent of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for effect any settlement of any lawsuit, claim pending or proceeding effected without its consent threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (which consent will not be unreasonably withheld), but if settled with i) includes an unconditional release of such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against all liability on any loss, damage or liability by reason claims that are the subject matter of such settlement. The Company agrees to notify Maxim promptlyaction and (ii) does not include a statement as to, or cause Maxim an admission of, fault, culpability or a failure to be notified promptly, act by or on behalf of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal subsection (a) or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(eb) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
above (fi) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, AMS Parties and the Issuer Trustee on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering of the Class A Bonds or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, AMS Parties and the Issuer Trustee on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, AMS Parties and the Issuer Trustee on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears AMS Parties and the Issuer Trustee bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-ManagerUnderwriters. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company AMS Parties and the Issuer Trustee or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined amount paid by pro rata allocation or by any other method of allocation which does not take account an indemnified party as a result of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this subsection (d). In addition, nothing in this Section 7 shall require the AMS Parties to indemnify and hold harmless ABN AMRO Bank N.V. from any losses, claims, damages or liabilities arising out of or based on information contained in or omitted from the information set forth in the Prospectus under the heading "Description of the Class A Bonds—Fixed-Floating Rate Swap Provider and Currency Swap Provider". Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the Class A Bonds underwritten by it and distributed to the public were offered to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The Underwriters' obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the AMS Parties and the Issuer Trustee under this Section 11shall be in addition to any liability which the AMS Parties and the Issuer Trustee may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager person, if any, who controls any Underwriter within the meaning of Section 15 the Securities Act; and the obligations of the Securities Act or Underwriters under this Section 20 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Exchange Act shall have AMS Parties or the same rights Issuer Trustee, to contribution as such Dealer-Manager, each officer of the Trust Manager who has signed the Registration Statement and to each Personperson, if any, who controls the Company AMS Parties or the Issuer Trustee within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (Australian Securitisation Management Pty LTD)
Indemnification and Contribution. (a) The Company agrees to hold harmless and indemnify Maxim the Trust, jointly and its affiliates and any officer, director, employee or agent of Maxim or any severally (each an “indemnifying party” as such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material term is used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of), relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the CompanyInitial Purchaser (whether acting as Initial Purchaser or as placement agent with respect to any of the Offered Notes), its officers, directors and directors, employees, each of its directors agents and each Personperson, if any, who controls the Company Initial Purchaser within the meaning of either the Securities Act, Act or the Exchange Act and the affiliates of the Initial Purchaser (each an “indemnified party” as such term is used in this Agreement) from and against any loss, claim, damage or liability, joint or several, or and any action in respect thereof, to which the Company or any such director, officer or controlling Person indemnified party may become subject, under the Securities Act or Exchange Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) , any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer DocumentsMemorandum, any Additional Offering Document or the Time of Sale Information or arises out of, or in any such amendment or supplementis based upon, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer or controlling Person indemnified party for any legal or and other expenses reasonably incurred by the Company or any such director, officer or controlling Person indemnified party in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceedingaction; provided, however, that the indemnifying parties shall not be liable to any such indemnified party in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Time of Sale Information, any Memorandum or any Additional Offering Document in reliance upon and in conformity with written information furnished to the Company by such indemnified party specifically for inclusion therein; provided, further, that the foregoing indemnity shall not inure to the benefit of any indemnified party from whom the person asserting any such loss, claim, damage or liability purchased the Offered Notes which are the subject thereof if the indemnified party sold Offered Notes to or placed Offered Notes with the person alleging such loss, claim, damage or liability without sending or giving a copy of the Time of Sale Information at or prior to the confirmation of the sale of the Offered Notes, if the Company shall have previously furnished copies thereof to such indemnified party and the loss, claim, damage or liability of such person results from an untrue statement or omission of a material fact contained in the Preliminary Memorandum which was corrected in the Time of Sale Information. The foregoing indemnity is in addition to any liability that the indemnifying parties may otherwise have to any indemnified party. The indemnifying parties acknowledge that the statements set forth in the Time of Sale Information and the Final Memorandum (x) under the caption: “Plan of Distribution” (but solely the second, third, fourth, sixth, seventh and penultimate paragraph under such caption) of the Final Memorandum and (y) relating to ▇▇▇▇▇ Fargo Securities, LLC in the last sentence of the first full paragraph on page iv of the Final Memorandum constitute the only written information furnished to the Company by or on behalf of the indemnified parties specifically for inclusion in the Time of Sale Information, any Memorandum or any Additional Offering Document.
(b) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify such indemnifying party in writing of the claim or commencement of that action, provided, however, that the failure so to notify the an indemnifying party shall not relieve the such indemnifying party from any obligation or liability which that it may have to an indemnified party under this Section 11 8, except to the extent that it such indemnifying party has been materially prejudiced in any material respect by such failure and in any event and, provided, further, that the failure to notify an indemnifying party shall not relieve the such indemnifying party from any other obligation or liability which that it may have to such an indemnified party otherwise than under this Section 118. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the an indemnifying party of the commencement of thereof, such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written notice from to the extent that it wishes, jointly with any other similarly notified indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding thereof with counsel of its choice at its expense; provided, however, that reasonably satisfactory to such counsel shall be satisfactory indemnified party. After notice from any such indemnifying party or parties to the indemnified party in the exercise or parties of its reasonable judgment. Notwithstanding the or their election of the indemnifying party to assume the defense of such lawsuit, claim or proceedingaction, any such indemnifying party or parties shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party or parties in connection with the defense thereof; provided that the indemnified party seeking such indemnity shall have the right to employ separate counsel to represent it and any other indemnified party who may be subject to participate in the defense liability arising out of such lawsuit, any claim or proceeding, and the action in respect of which indemnity may be sought by an indemnified party against an indemnifying party shall bear the reasonable feesunder this Section 8, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: if (i) in the use reasonable judgment of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and any other indemnified parties which are party different from or in addition to those available to the Company or the Trust, or there is a conflict of interest between it and any other indemnified party, on one hand, and the Company or the Trust, on the other, or (ii) the Company or the Trust shall fail to select counsel reasonably satisfactory to such indemnified party or parties, and in such event the fees and expenses of such separate counsel shall be paid by the Company and the Trust. In no event shall the Company or the Trust be liable for the fees and expenses of more than one separate firm of attorneys for all indemnified parties in connection with any other action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party (in which case shall, without the indemnifying party shall not have the right to direct the defense of such action on behalf prior written consent of the indemnified party); (iii) the indemnifying , effect any settlement of any pending or threatened proceeding in respect of which any indemnified party shall not is or could have employed counsel satisfactory to been a party and indemnity could have been sought hereunder by such indemnified party, in the exercise unless such settlement (i) does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any such indemnified party, and (ii) includes an unconditional release of such indemnified party’s reasonable judgment, party from all liability on claims that are the subject matter of such proceeding.
(c) If the indemnification provided for in Section 8 shall for any reason be unavailable to represent such an indemnified party within a reasonable time after notice under subsection 8(a) hereof in respect of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, claim, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptlyliability, or cause Maxim any action in respect thereof, referred to be notified promptlytherein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an such indemnified party as a result of the lossessuch loss, claimsclaim, damagesdamage or liability, liabilities or expenses referred to action in the immediately preceding paragraph respect thereof, (i) in such proportion as shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, Company and the Trust on the one hand, hand (without duplication) and Maxim, the Initial Purchaser on the other hand, from the Rights Offering or, offering and sale of the Offered Notes or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company and the Trust on the one hand, hand and Maxim, the Initial Purchaser on the other hand, in connection with respect to the statements or omissions which that resulted in such lossesloss, claimsclaim, damagesdamage or liability, liabilities or expensesaction in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company and the Trust on the one hand, hand (without duplication) and Maxim, the Initial Purchaser on the other hand, with respect to such offering shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net offering and sale of the fees of the Dealer-Manager set forth in Section 6 hereof, but Offered Notes (before deducting expenses) received by the Company bears and the Trust bear (without duplication) to (y) the total fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-ManagerInitial Purchaser with respect to such offering and sale. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Trust or Maxim (which consists solely and exclusively by the Initial Purchaser, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, the Trust and the Dealer-Manager Initial Purchaser agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection 8(c) were to be determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Sectionherein. The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 11 subsection 8(c) shall be deemed to include include, for purposes of this subsection 8(c), any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue action or alleged untrue statement or omission or alleged omissionclaim. Notwithstanding the provisions of this Section 11: (i) subsection 8(c), the Dealer-Manager Initial Purchaser shall not be required to contribute any amount in excess of the fees aggregate fee actually received by paid to the Dealer-Manager from Initial Purchaser with respect to the Company in connection with offering of the Rights Offering and (ii) no Person Offered Notes. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes .
(d) The indemnity agreements contained in this Section 8 shall survive the delivery of the Offered Notes, and the provisions of this Section 118 shall remain in full force and effect, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement regardless of any action, suit termination or proceeding against such party in respect cancellation of which a claim for contribution may be this Agreement or any investigation made against another party by or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from on behalf of any obligation it or they may have under this Section 11(f) or otherwiseindemnified party.
Appears in 1 contract
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates from and each Underwriter against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject (including, without limitation, in its capacity as an Underwriter or as a "qualified independent underwriter" within the meaning of Schedule E of the Bylaws of the NASD), under the Securities Act, the Exchange Act or otherwise otherwise, specifically including, but not limited to, losses, claims, damages or liabilities (as incurred or suffered), actions in respect thereof) arising out of or based upon: upon (i) any breach of any representation, warranty, Agreement or covenant of the Company herein contained, (ii) any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Registration Statement or any amendment or supplement thereto, in including any other solicitation material used by the Company or authorized by it for use in connection with the Rights OfferingIncorporated Document, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any untrue statement or alleged untrue statement of any material fact contained in order any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offeringmisleading, and (B) all reasonable expenses (including, but not limited to, agrees to reimburse each Underwriter for any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed reasonably incurred by the Company promptly after receipt of it in connection with investigating or defending any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any such loss, claim, damage, liability or expense pursuant action; provided, however, that the Company shall not be liable in any such case to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of extent that any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, such Preliminary Prospectus or the Prospectus, or any such amendment or supplement thereto, in reliance upon: , and in conformity with, written information relating to any Underwriter furnished to the Company by such Underwriter, directly or through you, specifically for use in the preparation thereof and, provided further, that the indemnity Agreement provided in this Section 8(a) with respect to any Preliminary Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any losses, claims, damages, liabilities or actions based upon any untrue statement or alleged untrue statement of material fact or omission or alleged omission to state therein a material fact purchased Shares, if a copy of the Prospectus in which such untrue statement or alleged untrue statement or omission or alleged omission was corrected had not been sent or given to such person within the time required by the Act and the Rules and Regulations, unless such failure is the result of noncompliance by the Company with Section 4(d) hereof. The indemnity Agreement in this Section 8(a) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act. This indemnity Agreement shall be in addition to any liabilities which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company against any losses, claims, damages or liabilities, joint or several, to which the Company may become subject under the Act, the Exchange Act or otherwise, specifically including, but not limited to, losses, claims, damages or liabilities (or actions in respect thereof) arising out of or based upon (i) any breach of any representation, warranty, Agreement or covenant of such Underwriter herein contained, (ii) any untrue statement or alleged untrue statement of a any material fact contained (A) in the Registration Statement or any Offer Documentsamendment or supplement thereto, including any Incorporated Document, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but or (iii) any untrue statement or alleged untrue statement of any material fact contained in each any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in the case solely of subparagraphs (ii) and exclusively (iii) of this Section 8(b) to the extent extent, but only to the extent, that the such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by such Underwriter, directly or through you, specifically for use in the preparation thereof, and shall agrees to reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredaction. The indemnity Agreement in this Section 8(b) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each officer of the Company who signed the Registration Statement and each director of the Company, and each person, if any, who controls the Company within the meaning of the Act or the Exchange Act. This indemnity Agreement shall be in addition to any liabilities which each Underwriter may otherwise have.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to under this Section 118 of notice of the commencement of any action, such indemnified party shall promptly shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement of such lawsuit, claim or proceeding; provided, however, that thereof but the failure omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 118. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party party, and such indemnified party shall notify it notified the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, therein and, after to the extent that it shall elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuitthereof, claim or proceeding with counsel of its choice at its expensereasonably satisfactory to such indemnified party; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) if the defendants in, or targets of, in any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it or to and/or other indemnified parties which are different from or in addition additional to those available to the indemnifying party, the indemnified party (in which case the indemnifying party or parties shall not have the right to direct select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of the indemnifying party's election so to assume the defense of such action and approval by the indemnified partyparty of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with appropriate local counsel) approved by the indemnifying party representing all the indemnified parties under Section 8(a) or 8(b) hereof who are parties to such action); , (iiiii) the indemnifying party shall not have employed counsel satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgment, party to represent such the indemnified party within a reasonable time after notice of commencement of the institution of any such lawsuit, claim or proceeding; action or (iviii) the indemnifying party shall authorize such has authorized the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments In no event shall apply whether or not any indemnifying party be liable in respect of any amounts paid in settlement of any action unless the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall have approved the terms of such settlement; provided that such consent shall not be liable for unreasonably withheld. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any lawsuitpending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnification could have been sought hereunder by such indemnified party, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with unless such consent, the indemnifying party agrees, subject to the provisions settlement includes an unconditional release of this Section 11, to indemnify the such indemnified party from and against any loss, damage or all liability by reason on all claims that are the subject matter of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximproceeding.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for just and equitable contribution in circumstances any action in which the a claim for indemnification provided for in is made pursuant to this Section 11 8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 8 provides for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunderindemnification in such case, all the Company, on the one hand, and Maxim, on the other hand, parties hereto shall contribute to the aggregate losses, claims, damages, damages or liabilities to which they may be subject (after contribution from others) in such proportion so that the Underwriters severally and expenses of not jointly are responsible pro rata for the nature contemplated portion represented by such indemnification provision (including any investigation, legal and other expenses incurred in connection withthe percentage that the underwriting discount bears to the initial public offering price, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Personsare responsible for the remaining portion, other than Maximprovided, who may also be liable for contributionhowever, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager no Underwriter shall be required to contribute any amount in excess of the fees actually received amount by which the Dealer-Manager from underwriting discount applicable to the Company in connection with Shares purchased by such Underwriter exceeds the Rights Offering amount of damages which such Underwriter has otherwise required to pay and (ii) no Person person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraudulent misrepresentation. For purposes of The contribution Agreement in this Section 118(d) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Personperson, if any, who controls any Underwriter or the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, Act and each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have Company.
(e) The parties to this Agreement hereby acknowledge that they are sophisticated business persons who were represented by counsel during the same rights to contribution as negotiations regarding the Companyprovisions hereof including, subject without limitation, the provisions of this Section 8, and are fully informed regarding said provisions. They further acknowledge that the provisions of this Section 8 fairly allocate the risks in each case to clauses (i) and (ii) light of the immediately preceding sentence. Any party entitled ability of the parties to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party investigate the Company and its business in respect of which a claim for contribution may be order to assure that adequate disclosure is made against another party or parties, notify each party or parties from whom contribution may be sought, but in the omission to so notify such party or parties shall not relieve Registration Statement and Prospectus as required by the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseAct and the Exchange Act.
Appears in 1 contract
Sources: Underwriting Agreement (Sequus Pharmaceuticals Inc)
Indemnification and Contribution. (a) The Company agrees to Each of CDF and the Transferor shall, jointly and severally, indemnify and hold harmless each Underwriter and indemnify Maxim and its affiliates and each person who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange ActAct as follows:
(i) Maxim or any of such affiliates from and against any and all (A) lossesloss, claimsliability, damages claim, damage and liabilities expense whatsoever, under the Securities Act or otherwise (as incurred or suffered)incurred, arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement (or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering), or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); misleading;
(ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, against any and all reasonable legal expenses) incurred loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in connection with investigatingsettlement of any litigation, preparing to defend or defending any lawsuit, claim investigation or other proceedingproceeding by any governmental agency or body, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for claim whatsoever based upon any loss, claim, damage, liability such untrue statement or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or severalomission, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity omission, if such settlement is effected with the Dealer-Manager Information, written consent of the Transferor and CDF (which consent shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend not be unreasonably withheld); and
(iii) against any such lossand all expense whatsoever (including, claim, damage, liability or action as such expenses are incurred.
(csubject to Section 7(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedinghereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel fees and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use disbursements of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (iiRepresentative) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this Section 7 shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made (A) in reliance upon and in conformity with written information furnished to the Transferor or CDF by the Representative expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) and set forth in the Prospectus and in the Prospectus Supplement, in each case as specified in the related Terms Agreement, or (B) in any ABS Filing or any amendment or supplement thereof, except to the extent that any untrue statement or alleged omission. Notwithstanding untrue statement therein or omission therefrom results (or is alleged to have resulted) from an error (a "Pool Error") in the provisions of this Section 11: (i) information concerning the Dealer-Manager shall be required to contribute any amount in excess characteristics of the fees actually received Receivables furnished by the Dealer-Manager from Transferor to the Company Underwriter in connection with writing or by electronic transmission that was used in the Rights Offering preparation of any Computational Materials or ABS Term Sheets (or amendments or supplements thereof) included in such ABS Filing (or amendment or supplement thereof).
(b) Each Underwriter severally agrees to indemnify and (ii) no Person guilty of fraudulent misrepresentation (within hold harmless the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11Transferor and CDF, each Person controlling a Dealer-Manager of their respective directors, each of their respective officers or managers who signed the Registration Statement, and each person, if any, who controls the Transferor and CDF, respectively, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of the Company who shall have signed this Section 7, as incurred, but only with respect to (i) untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and each director of in conformity with written information furnished to the Company shall have Transferor or CDF through the same rights to contribution as Representative expressly for use in the CompanyRegistration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto), subject in each case as specified in the related Terms Agreement, or (ii) any Computational Materials or ABS Term Sheets (or amendments or supplements thereof) furnished to clauses the Transferor or CDF by such Underwriter through the Representative pursuant to Section 9 or Section 10, or directly by such Underwriter, to the extent that such materials were delivered to investors by such Underwriter, and incorporated by reference in such Registration Statement or the related Prospectus or any amendment or supplement thereof (except that no such indemnity shall be available for any losses, claims, damages or liabilities, or actions in respect thereof, resulting from any Pool Error).
(c) Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it with respect to which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve it from any liability which it may have on account of this Section 7 except to the extent that such indemnifying party is materially prejudiced by the indemnified party's failure to provide such notification. An indemnifying party may participate at its own expense in the defense of such action. If it so elects within a reasonable time after receipt of such notice, an indemnifying party, jointly with any other indemnifying parties receiving such notice, may assume the defense of such action with counsel chosen by it and approved by the indemnified parties defendant in such action, unless such indemnified parties reasonably object to such assumption on the ground that there may be legal defenses available to such indemnifying party. If an indemnifying party assumes the defense of such action, the indemnifying parties shall not be liable for any fees and expenses of counsel for the indemnified parties incurred thereafter in connection with such action other than reasonable costs of investigation. In no event shall the indemnifying parties be liable for the fees and expenses of more than one 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, unless (i) if the defendants in any such action include one or more of the indemnified parties and the indemnifying party, one or more of the indemnified parties shall have employed separate counsel after having reasonably concluded that there may be legal defenses available to it or them that are different from or additional to those available to the indemnifying party or to one or more of the other indemnified parties, or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of the action. No indemnifying party shall, without the prior written consent of the indemnified party, effect any action, suit settlement of any pending or proceeding against such party threatened action in respect of which any indemnified party is or could have been a claim for contribution may be made against another party or parties, notify each and indemnity could have been sought hereunder by such indemnified party or parties unless such settlement includes an unconditional release of such indemnified party from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought all liability from any obligation it or they may have under this Section 11(f) or otherwiseclaims that are the subject matter of such action.
Appears in 1 contract
Indemnification and Contribution. (a) The Company agrees shall, to the extent permitted by applicable law, indemnify and hold harmless each seller of Shares and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person each person who under the Act is deemed a controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim or any person of such affiliates from and seller, against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such seller or any such director or officer or participating person or controlling person may become subject under the Securities Act or otherwise any other statute or at common law, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: upon (i) any untrue statement or alleged untrue statement of a any material fact contained, on the effective date thereof, in any registration statement under which such Shares were registered under the Act, any preliminary prospectus or final prospectus contained in the Offer Documents therein, or any amendment or supplement thereto, in or (ii) any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such seller or such director, officer or participating person or controlling Person person for any legal or and any other expenses reasonably incurred by the Company such Shareholder or any such director, officer or participating person or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceedingaction; provided, however, that the failure so to notify the indemnifying party Company shall not relieve the indemnifying party from be liable in any obligation or liability which it may have under this Section 11 except such case to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuitloss, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any lossclaim, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising arises out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or alleged omission made in such registration statement, preliminary prospectus, prospectus or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required amendment or supplement in reliance upon and in conformity with written information furnished to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of by such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseselling Shareholder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ampal American Israel Corp /Ny/)
Indemnification and Contribution. (a) The Company agrees and the Bank (subject to hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a10(g) of the Exchange Act) Maxim or any of such affiliates from and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or sufferedbelow), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement theretojointly and severally, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Companyeach Underwriter, its officers, directors officers and employees, each of its directors employees and each Personperson, if any, who controls the Company any U.S. Underwriter within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereofthereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Stock), to which the Company or any such directorthat U.S. Underwriter, officer officer, employee or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer DocumentsPreliminary Prospectus, either of the Registration Statements or the Prospectus, or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer DocumentsPreliminary Prospectus, either of the Registration Statements or the Prospectus, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Applicationsupplement thereto, any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or (iii) any act or failure to act, but or any alleged act or failure to act, by any U.S. Underwriter in each connection with, or relating in any manner to, the U.S. Stock or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon matters covered by clause (i) or (ii) above (provided that the Company and the Bank shall not be liable in the case solely and exclusively of any matter covered by this clause (iii) to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made it is determined in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred a final judgment by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any a court of competent jurisdiction that such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party resulted directly from any obligation such act or liability which it may have under this Section 11 except failure to the extent that it has been prejudiced in any material respect act undertaken or omitted to be taken by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of U.S. Underwriter through its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maxim.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maxim, on the other hand, from the Rights Offering gross negligence or, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, shall be deemed to be in the same proportion as: (x) the total proceeds from the Rights Offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 1 contract
Indemnification and Contribution. (a) The Company agrees to shall indemnify and hold harmless each Holder of Transfer Restricted Securities offered pursuant to a Shelf Registration Statement, each Participating Broker-Dealer selling Exchange Notes during the Applicable Period and indemnify Maxim the Placement Agents and its affiliates the officers and any officeremployees and each Person, directorif any, employee or agent of Maxim or who controls any such affiliates and any Person controlling (within the meaning of Section 20(athe Securities Act (each a "Participant") of the Exchange Act) Maxim or any of such affiliates from and against any and all loss, claim, damage or liability, joint or several, or any action in respect thereof (A) lossesincluding, claimsbut not limited to, damages and liabilities whatsoeverany loss, claim, damage, liability or action relating to the exchange of or sales of the Transfer Restricted Securities), to which that Participant may become subject, under the Securities Act or otherwise (otherwise, insofar as incurred such loss, claim, damage, liability or suffered)action arises out of, arising out of or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents any Registration Statement or Prospectus, or any amendment or supplement thereto, in or any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offeringrelated preliminary prospectus, or in any blue sky application or other document prepared or executed by the Company (or based on upon any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants Transfer Restricted Securities under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “"Blue Sky Application”"), (ii) or arising out of or based upon the omission or alleged omission to state in therein any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken any act or omitted failure to be taken act, or any alleged act or failure to act, by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be Participant in connection with, or relating in any manner to, the Rights Offering, any of the other transactions contemplated thereby Transfer Restricted Securities or the performance of Maxim’s services to the Company with respect to the Rights Offeringregistration contemplated hereby, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred which is included as part of or referred to in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant action arising out of or based upon matters covered by clause (i) or (ii) above (provided that the Company shall not be liable in the case of any matter covered by this clause (iii) to the preceding sentence which has been extent that it is determined in a final judgment by a court of competent jurisdiction to have that such loss, claim, damage, liability or action resulted directly from willful misconduct any such act or failure to act undertaken or omitted to be taken by such Participant through its gross negligence or wilful misconduct), and shall reimburse each Participant promptly upon demand for any legal or other expenses reasonably incurred by that Participant in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement or Prospectus, or in any such amendment or supplement, or in any Blue Sky Application in reliance upon and in conformity with the written information furnished to the Company by or on the part behalf of any indemnified partyParticipant specifically for inclusion therein; provided, further, that with respect to any such untrue statement in or omission from any preliminary prospectus, the indemnity agreement contained in this Section 7(a) shall not inure to the benefit of any such Participant to the extent that the sale to the Person asserting any such loss, claim, damage, liability or action was an initial resale by such Participant and any such loss, claim, damage, liability or action of or with respect to such Participant results from the fact that both (A) to the extent required by applicable law, a copy of the Prospectus was not sent or given to such Person at or prior to the written confirmation of the sale of such securities to such Person and (B) the untrue statement in or omission from such preliminary prospectus was corrected in the Prospectus unless, in either case, such failure to deliver the Prospectus was a result of non-compliance by the Company with Section 5(g) of this Agreement. The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Participant.
(b) The DealerEach Holder of Transfer Restricted Securities offered pursuant to a Shelf Registration Statement, each Participating Broker-Manager Dealer selling Exchange Notes during the Applicable Period and the Placement Agents (each a "Participant Indemnifying Party") severally and not jointly, shall indemnify and hold harmless the Company, its officers, directors officers and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, Act from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documentspreliminary prospectus or the Registration Statement or Prospectus, or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; Application or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, therein any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Informationwritten information furnished to the Company by that Participant Indemnifying Party specifically for inclusion therein, and shall reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Participant Indemnifying Party may otherwise have to the Company or any such director, officer or controlling Person.
(c) If Promptly after receipt by an indemnified party under this Section 7 of notice of any lawsuit, claim or proceeding is brought against the commencement of any action, the indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 117, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuit, claim or proceedingthat action; provided, however, that the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 7 except to the extent that it has been materially prejudiced in any material respect by such failure and in any event and, provided, further, that the failure to notify the indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such an indemnified party otherwise than under this Section 117. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding action, the indemnifying party shall not be liable to the indemnified party under this Section 7 for any legal or other expenses subsequently incurred by the indemnified party in connection with counsel the defense thereof other than reasonable costs of its choice at its expenseinvestigation; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense of such lawsuit, claim or proceeding, and thereof but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay be at the expense of such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: indemnified party unless (i) the use of counsel chosen employment thereof has been specifically authorized by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; in writing, (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by such counsel that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (and in which case the indemnifying party shall not have the right to direct the defense reasonable judgement of such action on behalf of the counsel it is advisable for such indemnified party); party to employ separate counsel or (iii) the indemnifying party shall not have employed has failed to assume the defense of such action and employ counsel reasonably satisfactory to such the indemnified party, in the exercise of such indemnified party’s reasonable judgmentwhich case, to represent if such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) notifies the indemnifying party shall authorize such indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such indemnified parties, which firm shall be designated in writing by the Placement Agents, if the indemnified parties under this Section 7 consist of any Participants, or by the Company, if the indemnified parties under this Section consist of the Company or any of the Company's directors, officers, employees or controlling Persons. The foregoing Each indemnified party, as a condition of the indemnity agreements contained in Sections 7(a) and 7(b), shall use its reasonable efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld) settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or proceeding. The indemnifying action) unless such settlement, compromise or consent (a) includes an unconditional release of each indemnified party shall from all liability arising out of such claim, action, suit or proceeding and (b) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of the indemnified party, or (ii) be liable for any settlement of any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment of the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage or loss of liability by reason of such settlement. The Company agrees to notify Maxim promptly, settlement or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximjudgment.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 7 shall for any reason held to be unavailable from any indemnifying party to or is insufficient to hold harmless a an indemnified party under Section 7(a) or 7(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified thereunderparty, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated amount paid or payable by such indemnification provision indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyi) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is shall be appropriate to reflect the relative benefits received by the Company, Company on the one hand, hand and Maxim, the Participants on the other hand, from the Rights Offering or, offering of the Notes or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company on the one hand, hand and Maxim, the Participants on the other hand, in connection with respect to the statements or omissions which resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company on the one hand, hand and Maxim, the Participants on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Notes (before deducting expensesexpenses underwriting discounts and commissions) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Company, bear on the one hand, and Maximthe total underwriting discounts and commissions received by the Participants with respect to the Notes purchased under the Purchase Agreement, on the other hand, bear to the total gross proceeds from the offering of the Notes under the Purchase Agreement. The relative fault shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively the Participants, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager Participants agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f7(d) were to be determined by pro rata allocation (even if the Participants were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Sectionherein. The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 11 7(d) shall be deemed to include include, for purposes of this Section 7(d), any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such action or claim. Notwithstanding the provisions of this Section 7(d), no Participant shall be required to contribute any amount in excess of the amount by which the total price at which the Notes purchased by it were resold exceeds the amount of any damages which such has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of The Participant's obligations to contribute as provided in this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights 7(d) are several in proportion to contribution as such Dealer-Manager, their respective purchase obligations and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwisejoint.
Appears in 1 contract
Sources: Registration Rights Agreement (Versatel Telecom International N V)
Indemnification and Contribution. (a) The Company agrees to and each of its subsidiaries jointly and severally, shall indemnify and hold harmless each Underwriter, its officers and indemnify Maxim employees and its affiliates and each person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) of the Exchange Securities Act) Maxim or any of such affiliates , from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and all (A) lossessales of Stock), claimsto which that Underwriter, damages and liabilities whatsoeverofficer, employee or controlling person may become subject, under the Securities Act or otherwise (otherwise, insofar as incurred such loss, claim, damage, liability or suffered)action arises out of, arising out of or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Offer Documents Registration Statement or the Prospectus or in any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Companyii) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky Application any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken any act or omitted failure to be taken act or any alleged act or failure to act by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be Underwriter in connection with, or relating in any manner to, the Rights Offering, any of the other transactions contemplated thereby Stock or the performance of Maxim’s services to the Company with respect to the Rights Offeringoffering contemplated hereby, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred which is included as part of or referred to in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant action arising out of or based upon matters covered by clause (i) or (ii) above (PROVIDED that neither the Company nor any of its subsidiaries shall be liable under this clause (iii) to the preceding sentence which has been extent that it is determined in a final judgment by a court of competent jurisdiction to have that such loss, claim, damage, liability or action resulted directly from willful misconduct any such acts or failures to act undertaken or omitted to be taken by such Underwriter through its gross negligence or willful misconduct), and shall reimburse each Underwriter and each such officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER, that neither the Company nor any of its subsidiaries shall be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any such amendment or supplement, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Representatives by or on the part behalf of any indemnified partyUnderwriter specifically for inclusion therein which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement is in addition to any liability which the Company or any of its subsidiaries may otherwise have to any Underwriter or to any officer, employee or controlling person of that Underwriter.
(b) The Dealer-Manager Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, its officers, directors officers and employees, each of its directors directors, and each Personperson, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: , (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer DocumentsPreliminary Prospectus, the Registration Statement or the Prospectus or in any such amendment or supplementsupplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; Application or (ii) the omission or alleged omission to state in any Offer DocumentsPreliminary Prospectus, the Registration Statement or the Prospectus, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offeringsupplement thereto, or in any Blue Sky Application, Application any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Dealer-Manager InformationCompany through the Representatives by or on behalf of that Underwriter specifically for inclusion therein, and shall reimburse the Company and any such director, officer or controlling Person person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Company or any such director, officer, employee or controlling person.
(c) If Promptly after receipt by an indemnified party under this Section 8 of notice of any lawsuit, claim or proceeding is brought against the commencement of any action, the indemnified party shall, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to under this Section 118, such indemnified party shall promptly notify the indemnifying party in writing of the claim or the commencement of such lawsuitthat action; PROVIDED, claim or proceeding; provided, howeverHOWEVER, that the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 8 except to the extent that it has been materially prejudiced in any material respect by such failure and in any event and, PROVIDED FURTHER, that the failure to notify the indemnifying party shall not relieve the indemnifying party it from any other obligation or liability which it may have to such an indemnified party otherwise than under this Section 118. In case If any such lawsuit, claim or proceeding action shall be brought against any an indemnified party party, and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to such the indemnified party, party of its election to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; providedaction, however, that such counsel the indemnifying party shall not be satisfactory liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume connection with the defense thereof other than reasonable costs of such lawsuitinvestigation; PROVIDED, claim or proceedingHOWEVER, such indemnified party that the Representatives shall have the right to employ separate counsel to represent jointly the Representatives and those other Underwriters and their respective officers, employees and controlling persons who may be subject to participate liability arising out of any claim in respect of which indemnity may be sought by the Underwriters against the Company or any of its subsidiaries under this Section 8 if, in the defense reasonable judgment of such lawsuitthe Representatives, claim or proceedingit is advisable for the Representatives and those Underwriters, officers, employees and controlling persons to be jointly represented by separate counsel, and in that event the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (shall be paid by the Company and its subsidiaries. No indemnifying party shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) without the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf prior written consent of the indemnified party); parties (iii) the indemnifying party which consent shall not have employed counsel satisfactory be unreasonably withheld), settle or compromise or consent to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution entry of any such lawsuitjudgment with respect to any pending or threatened claim, claim action, suit or proceeding; proceeding in respect of which indemnification or contribution may be sought hereunder (iv) the indemnifying party shall authorize such indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party parties are actual or potential parties to any such lawsuit, claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. The indemnifying party shall not , or (ii) be liable for any settlement of any lawsuit, claim or proceeding such action effected without its written consent (which consent will shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such consentaction, the indemnifying party agrees, subject to the provisions of this Section 11, agrees to indemnify the and hold harmless any indemnified party from and against any loss, damage loss or liability by reason of such settlement. The Company agrees to notify Maxim promptly, settlement or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximjudgment.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 8 shall for any reason held to be unavailable from any indemnifying party to or is insufficient to hold harmless a an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified thereunderparty, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated amount paid or payable by such indemnification provision indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyi) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is shall be appropriate to reflect the relative benefits received by the CompanyCompany and its subsidiaries, on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering or, offering of the Stock or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, Company and its subsidiaries on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damagesdamage or liability, liabilities or expensesaction in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company, Company and its subsidiaries on the one hand, hand and Maxim, the Underwriters on the other hand, with respect to such offering shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Stock purchased under this Agreement (before deducting expenses) received by the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each of the Companyand its subsidiaries, on the one hand, and Maximthe total underwriting discounts and commissions received by the Underwriters with respect to the shares of the Stock purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the shares of the Stock under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and its subsidiaries or Maxim (which consists solely and exclusively the Underwriters, the intent of the Dealer-Manager Information) parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. For purposes of the preceding two sentences, the net proceeds deemed to be received by the Company shall be deemed to be also for the benefit of each of its subsidiaries and information supplied by the Company shall also be deemed to have been supplied by each of its subsidiaries. The Company Company, each of its subsidiaries and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Sectionherein. The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 11 shall be deemed to include include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such action or claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Stock underwritten by it and distributed to the public was offered to the public exceeds the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f8(e) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of The Underwriters' obligations to contribute as provided in this Section 11, each Person controlling a Dealer-Manager within 8(d) are several in proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the meaning of Section 15 Company and its subsidiaries acknowledge that the statements with respect to the public offering of the Securities Act Stock by the Underwriters set forth on the cover page of, the legend concerning over-allotments on the inside front cover page of and the concession and reallowance figures appearing under the caption "Underwriting" in, the Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to the Company by or Section 20 on behalf of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed Underwriters specifically for inclusion in the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseProspectus.
Appears in 1 contract
Indemnification and Contribution. (a) The In the case of each offering of Registrable Securities made pursuant to this Agreement, the Company agrees to shall indemnify and hold harmless each Holder, its officers and indemnify Maxim directors, each underwriter of Registrable Securities so offered and its affiliates and each Person, if any, who controls any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (the foregoing persons within the meaning of Section 20(a) of the Exchange Act) Maxim or any of such affiliates Securities Act ("Holder Indemnitees"), from and against any and all (A) claims, liabilities, losses, damages, expenses and judgments, joint or several, to which they or any of them may become subject, including any amount paid in settlement of any litigation commenced or threatened, and shall promptly reimburse them, as and when incurred, for any legal or other expenses incurred by them in connection with investigating any claims and defending any actions, insofar as such losses, claims, damages and damages, liabilities whatsoeveror actions shall arise out of, under or shall be based upon, any violation or alleged violation by the Company of the Securities Act Act, any blue sky laws, securities laws or otherwise (as incurred other applicable laws of any state or suffered)county in which the Registrable Securities are offered, arising and relating to action taken or action or inaction required of the Company in connection with such offering, or shall arise out of of, or shall be based upon: (i) , any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents Registration Statement (or in any preliminary or final prospectus included therein) relating to the offering and sale of such Registrable Securities, or any amendment thereof or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application document incorporated by reference therein, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information)misleading; (ii) any withdrawal or termination by but the Company of, or failure by the Company shall not be liable to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or any Holder Indemnitee in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services such case to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, extent that any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) , any untrue statement or alleged untrue statement, or any omission or alleged omission, if such statement or omission shall have been made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of such Holder specifically for use in the preparation of the Registration Statement
(b) In the case of each offering of Registrable Securities made pursuant to this Agreement, each Holder shall indemnify and hold harmless the Company, its officers and directors and each person, if any, who controls any of the foregoing within the meaning of the Securities Act (the "Company Indemnitees"), from and against any and all claims, liabilities, losses, damages, expenses and judgments, joint or several, to which they or any of them may become subject, including any amount paid in settlement of any litigation commenced or threatened, and shall promptly reimburse them, as and when incurred, for any legal or other expenses incurred by them in connection with investigating any claims and defending any actions, insofar as any such losses, claims, damages, liabilities or actions shall arise out of, or shall be based upon, any violation by such Holder of the Securities Act, any blue sky laws, securities laws or other applicable laws of any state or country in which the Registrable Securities are offered and relating to action taken or action or inaction required of such Holder in connection with such offering, or shall arise out of, or shall be based upon, any untrue statement of a material fact contained in the Registration Statement (A) in any Offer Documents, or in any preliminary or final prospectus included therein) relating to the offering and sale of such Registrable Securities or any amendment thereof or supplementsupplement thereto, in or any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case solely and exclusively only to the extent that the such untrue statement is contained in, or alleged untrue statement or omission or alleged omission was made such fact is omitted from, information furnished in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse writing to the Company by or on behalf of such Holder specifically for use in the preparation of such Registration Statement (or in any preliminary or final prospectus included therein). Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any Company Indemnitee. In no event shall the liability of a Holder hereunder be greater in amount than the dollar amount of the net proceeds received by it upon the sale of Registrable Securities pursuant to such director, officer or controlling Person for offering. The foregoing indemnity is in addition to any legal or other expenses reasonably incurred by the liability which Holder may otherwise have to any Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurredIndemnitee.
(c) If In case any lawsuit, claim or proceeding is brought against (including any indemnified party governmental investigation) shall be instituted involving any person in respect of which indemnification indemnity may be sought against the indemnifying party pursuant to this Section 11, such person (the "indemnified party party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party of the commencement of such lawsuitparty") in writing, claim or proceeding; provided, however, that but the failure so to notify the indemnifying party give such notice shall not relieve the indemnifying party or parties from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it they may have to such the indemnified party otherwise than under this Section 11party. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party it shall notify the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, therein and, after written notice from to the extent that it shall wish, jointly with any other indemnifying party to such indemnified partysimilarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party and shall pay as incurred the fees and disbursements of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that related to such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgmentproceeding. Notwithstanding the election of the indemnifying party to assume the defense of In any such lawsuit, claim or proceeding, such any indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal defenses available to it or to other indemnified parties which are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party shall authorize such indemnified party to employ separate retain its own counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for any settlement of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximown expense.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held is unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party under subsection (a) or (b) in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, or if the indemnified thereunderparty failed to give the notice required under subsection (c), the Company, on the one hand, and Maxim, on the other hand, then each indemnifying party shall contribute to the aggregate amount paid or payable by the indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred or actions or proceedings in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect not only both the relative benefits received by such party (as compared to the Company, on the one hand, and Maxim, on the benefits received by all other hand, parties) from the Rights Offering oroffering in respect of which indemnity is sought, if such allocation is not permitted by applicable law, in such proportions as are appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, on the one hand, and Maxim, on the other hand, all parties in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maxim, on the other hand, a party shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by it bear to the Company bears to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total amounts received by the Dealer-Managereach other party. The relative Relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager parties agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Sectionsubsection (d). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions or proceedings in respect thereof) referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue action or alleged untrue statement or omission or alleged omissionclaim. Notwithstanding the provisions of this Section 11: subsection (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) d), no Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes .
(e) The indemnity provided for hereunder shall not inure to the benefit of this Section 11, each Person controlling a Dealer-Manager within any indemnified party to the meaning of Section 15 extent that such indemnified party failed to comply with the applicable prospectus delivery requirements of the Securities Act as then applicable to the person asserting the loss, claim, damage or Section 20 of the Exchange Act shall have the same rights to contribution as such Dealer-Manager, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of liability for which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be indemnity is sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Annuity & Life Re Holdings LTD)
Indemnification and Contribution. (a) The Each of the Company agrees to and the Subsidiary Guarantors, jointly and severally, will indemnify and hold harmless each Underwriter, its partners, members, directors and indemnify Maxim officers and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any who controls such affiliates and any Person controlling (Underwriter within the meaning of Section 20(a) 15 of the Exchange Act) Maxim or any of such affiliates from and , against any and all (A) losses, claims, damages and liabilities whatsoeveror liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: (i) upon any untrue statement or alleged untrue statement of a any material fact contained in the Offer Documents Registration Statement, any Statutory Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto, in any other solicitation material used by related preliminary prospectus or preliminary prospectus supplement, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Company or authorized by it for use in connection with the Rights OfferingAct, or in any blue sky application Non-Prospectus Road Show, or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising arise out of or are based upon the omission or alleged omission to state in any such document therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering or (B) in any Blue Sky Application; or (ii) the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in each connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by an Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by the Underwriters consists of the information described as such in subsection (b) below.
(b) Each Underwriter will severally and not jointly indemnify and hold harmless the Company, its directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, any Statutory Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any Non-Prospectus Road Show or any amendment or supplement thereto, or any related preliminary prospectus or preliminary prospectus supplement, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by such Underwriter specifically for use therein, and shall will reimburse the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred, it being understood and agreed that the only such information furnished by the Underwriters consists of the following information in the Prospectus: paragraphs under the caption “Underwriting”. The Company and the Underwriters acknowledge that no information has been furnished to the Company by an Underwriter for use in any Non-Prospectus Road Show.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect of which indemnification may thereof is to be sought made against the indemnifying party pursuant to this Section 11under subsection (a) or (b) above, such indemnified party shall promptly notify the indemnifying party in writing of the commencement thereof; but the failure to notify the indemnifying party will not relieve it from any liability which it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such lawsuit, claim or proceedingfailure; provided, however, provided that the failure so to notify the indemnifying party shall not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 11subsection (a) or (b) above. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall will be entitled to participate in such lawsuit, claim or proceeding, therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after written notice from the indemnifying party to such indemnified party, party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of such lawsuit, claim or proceeding with counsel of its choice at its expenseinvestigation; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, if such indemnified party shall have the right to employ separate been advised by counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there may be legal are one or more defenses available to it or to other indemnified parties which that are different from or in addition to conflict with those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); (iii) , the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in the exercise reasonable fees and expenses of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (iv) the indemnifying party counsel shall authorize such indemnified party to employ separate counsel at the expense of be borne by the indemnifying party. The foregoing indemnification commitments In no event shall apply whether or not the indemnified party is a formal party to any such lawsuit, claim or proceeding. The indemnifying party shall not be liable for the fees and expenses of more than one counsel (together with appropriate local counsel) at any time for any indemnified party in connection with any one action or separate but substantially similar or related actions arising in the same jurisdiction out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any lawsuit, claim pending or proceeding effected without its consent (threatened action in respect of which consent will not be unreasonably withheld), but if settled with any indemnified party is or could have been a party and indemnity could have been sought hereunder by such consent, the indemnifying indemnified party agrees, subject to the provisions unless such settlement includes an unconditional release of this Section 11, to indemnify the such indemnified party from and against all liability on any loss, damage or liability by reason claims that are the subject matter of such settlement. The Company agrees action and does not include a statement as to notify Maxim promptlyor an admission of fault, culpability or cause Maxim failure to be notified promptly, of the assertion act by or on behalf of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the losses, claims, damages, damages or liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal subsection (a) or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(eb) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
above (fi) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and Maximthe Underwriters, on the other hand, from the Rights Offering or, offering of the Offered Securities or (ii) if such the allocation provided by clause (i) above is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and Maximthe Underwriters, on the other handother, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maximthe Underwriters, on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of the Dealer-Manager set forth in Section 6 hereof actually total underwriting discounts and commissions received by the Dealer-ManagerUnderwriters from the Company under this Agreement. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager agree that it would not be just and equitable if contribution pursuant to this Section 11(f) were determined amount paid by pro rata allocation or by any other method of allocation which does not take account an indemnified party as a result of the equitable considerations referred to above in this Section. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities referred to above in the first sentence of this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigationaction or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), or no Underwriter shall be required to contribute any investigation or proceeding amount in excess of the amount by which the total price at which the Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager shall be required to contribute any amount in excess of the fees actually received by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 11shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each Person controlling a Dealer-Manager person, if any, who controls an Underwriter within the meaning of Section 15 the Act or the Exchange Act; and the obligations of the Securities Act or Underwriters under this Section 20 shall be in addition to any liability which the Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Exchange Act shall have Company, to each officer of the same rights Company who has signed the Registration Statement and to contribution as such Dealer-Manager, and each Personperson, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (Chesapeake Energy Marketing Inc)
Indemnification and Contribution. (a) The Company agrees to hold harmless and indemnify Maxim and its affiliates and any officer, director, employee or agent of Maxim or any such affiliates and any Person controlling (within the meaning of Section 20(a) each of the Exchange Act) Maxim or any of such affiliates from Guarantors shall jointly and against any and all (A) losses, claims, damages and liabilities whatsoever, under the Securities Act or otherwise (as incurred or suffered), arising out of or based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall severally indemnify and hold harmless the Companyeach Underwriter, its affiliates, their respective officers, directors directors, employees and employeesagents, each of its directors and each Personperson, if any, who controls the Company any Underwriter within the meaning of Section 15 of the Securities Act, from and against any losslosses, claimclaims, damage damages or liabilityliabilities, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person Underwriter may become subject, under the Securities Act or otherwise, insofar as such losslosses, claimclaims, damage, liability damages or action arises liabilities (or actions in respect thereof) arise out of, of or is are based upon: (i) any upon an untrue statement or alleged untrue statement of a material fact contained (A) in the Registration Statement, any Offer DocumentsPreliminary Prospectus, the Time of Sale Prospectus or the Prospectus, or in any such amendment or supplementsupplement thereto, in or any other solicitation material used by Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Company Securities Act Regulations, or authorized by it for use in connection with the Rights Offering arise out of or (B) in any Blue Sky Application; or (ii) are based upon the omission or alleged omission to state in any Offer Documents, or in any such amendment or supplement, in any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in and will reimburse each case solely and exclusively to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Dealer-Manager Information, and shall reimburse the Company and any such director, officer or controlling Person Underwriter for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person Underwriter in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
(c) If any lawsuit, claim or proceeding is brought against any indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to this Section 11, such indemnified party shall promptly notify the indemnifying party of the commencement of such lawsuit, claim or proceeding; provided, however, that the failure Company and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company or any of the Guarantors by an Underwriter expressly for inclusion therein, which information consists solely of the information described as such in Section 7(b). This indemnity agreement will be in addition to any liability that the Company and the Guarantors may otherwise have, including, but not limited to, other liability under this Agreement.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, each Guarantor, their respective affiliates, officers, directors, employees and agents, and each person, if any, who controls the Company or any Guarantor within the meaning of Section 15 of the Securities Act, against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus, or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company or any of the Guarantors by such Underwriter expressly for inclusion therein, and will reimburse the Company for any legal or other expenses incurred by the Company in connection with investigating or defending against any such loss, claim, damage, liability or action as such expenses are incurred, it being understood and agreed that the only such information furnished to the Company or any of the Guarantors by any Underwriter consists of the following information: (i) in the Time of Sale Prospectus and the Prospectus, (A) the fifth paragraph, (B) the eighth paragraph and (C) the last sentence of the ninth paragraph under the caption "Underwriting" and (ii) in the Prospectus, (A) the eleventh paragraph and (B) the twelfth paragraph under the caption “Underwriting.” This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have, including, but not limited to, other liability under this Agreement.
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such any indemnified party otherwise than under this Section 11subsection (a) or (b) above. In case any such lawsuit, claim or proceeding shall be action is brought against any indemnified party and such indemnified party shall notify it notifies the indemnifying party of the commencement of such lawsuit, claim or proceedingthereof, the indemnifying party shall be entitled to participate in therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such lawsuitindemnified party (who shall not, claim or proceedingexcept with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the following sentence, after written notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. After notice from the indemnifying party to the indemnified party of the indemnifying party, ’s election to assume the defense of such lawsuitaction, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate its own counsel and to participate in any such action, but the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel (and shall pay be at the expense of such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: indemnified party unless (i) the use indemnifying party and the indemnified party shall have mutually agreed to the retention of counsel chosen by such counsel, (ii) if the named parties in any such action include both the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) and the defendants in, or targets of, any such lawsuit, claim or proceeding include both an indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded that there is an actual or potential conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it or to other indemnified parties which that are different from or in addition additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party); or (iii) the indemnifying party shall not have employed counsel satisfactory to such indemnified party, in assume the exercise defense of such indemnified party’s reasonable judgment, to represent such indemnified party action within a reasonable time after notice of commencement thereof, in each of which cases the institution fees and expenses of any such lawsuit, claim or proceeding; or (iv) the indemnifying party counsel shall authorize such indemnified party to employ separate counsel be at the expense of the indemnifying party (it being understood, however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate counsel in addition to any local counsel). No indemnifying party shall, without the prior written consent of the indemnified party. The foregoing , effect any settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification commitments shall apply or contribution may be sought hereunder (whether or not the indemnified party is a formal an actual or potential party to any such lawsuitaction or claim) unless such settlement, claim compromise or proceeding. The indemnifying party shall not be liable for any settlement judgment (x) includes an unconditional release of any lawsuit, claim or proceeding effected without its consent (which consent will not be unreasonably withheld), but if settled with such consent, the indemnifying party agrees, subject to the provisions of this Section 11, to indemnify the indemnified party from and against any loss, damage or all liability by reason of such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of such action or relating the Rights Offering. The Company further agrees that claim and (y) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximindemnified party.
(d) The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
(e) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which If the indemnification provided for in this Section 11 for any reason held 7 is unavailable to be unavailable from any indemnifying party or is insufficient to hold harmless a an indemnified party indemnified thereunderunder subsection (a) or (b) above in respect of any losses, the Companyclaims, on the one handdamages or liabilities (or actions in respect thereof) referred to therein, and Maxim, on the other hand, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred or actions in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Companyrespect thereof) as incurred to which the Company and Maxim may be subject, in such proportions proportion as is appropriate to reflect the relative benefits received by the Company, Company and the Guarantors on the one hand, hand and Maxim, the Underwriters on the other hand, from the Rights Offering oroffering of the Securities. If, if such however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company, Company and the Guarantors on the one hand, hand and Maxim, the Underwriters on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, Company and the Guarantors on the one hand, hand and Maxim, the Underwriters on the other hand, shall be deemed to be in the same proportion as: (x) as the total net proceeds from the Rights Offering offering (net of the fees of the Dealer-Manager set forth in Section 6 hereof, but before deducting expenses) received by the Company bears bear to (y) the fees of total underwriting discounts and commissions received by the Dealer-Manager Underwriters, in each case as set forth in Section 6 hereof actually received by the Dealer-Managertable on the cover page of the Prospectus. The relative fault of each of the Company, on the one hand, and Maxim, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors or Maxim (which consists solely and exclusively of the Dealer-Manager Information) Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Dealer-Manager Guarantors and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(fsubsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Sectionsubsection (d). The aggregate amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages and expenses incurred by an indemnified party and or liabilities (or actions in respect thereof) referred to above in this Section 11 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue action or alleged untrue statement or omission or alleged omissionclaim. Notwithstanding the provisions of this Section 11: subsection (i) the Dealer-Manager d), no Underwriter shall be required to contribute any amount in excess of the fees actually received underwriting discounts and commissions applicable to the Securities purchased by the Dealer-Manager from the Company in connection with the Rights Offering and (ii) no Person such Underwriter. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of The Underwriters’ obligations in this Section 11, each Person controlling a Dealer-Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights subsection (d) to contribution as such Dealer-Manager, contribute are several in proportion to their respective purchase obligations and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwisejoint.
Appears in 1 contract
Sources: Underwriting Agreement (Cintas Corp)
Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and indemnify Maxim agents of each Underwriter and its affiliates and any officereach person, directorif any, employee or agent of Maxim or any such affiliates and any Person controlling (who controls each Underwriter within the meaning of Section 20(a) 15 of the Act or Section 20 of the Exchange Act) Maxim or any of such affiliates , from and against any and all (A) losses, claims, damages or liabilities, joint or several (and liabilities whatsoeveractions in respect thereof), to which they, or any of them, may become subject under the Securities Act or otherwise other Federal, state or Commonwealth of Puerto Rico statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (as incurred or suffered), arising actions in respect thereof) arise out of or are based upon: upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Offer Documents or any amendment or supplement thereto, in any other solicitation material used made by the Company or authorized by it for use in connection with the Rights OfferingSection 3 of this Agreement, or in any blue sky application or other document prepared or executed by the Company (or based on any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Rights or the Rights Shares or Rights Warrants under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “Blue Sky Application”) or arising out of or based upon the omission or alleged omission to state in any such document a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than statements or omissions made in reliance upon and in conformity with the Dealer-Manager Information); (ii) any withdrawal or termination by the Company of, or failure by the Company to make or consummate, the Rights Offering, (iii) actions taken or omitted to be taken by an indemnified party with the consent of the Company or in conformity with actions taken or omitted to be taken by the Company; (iv) any failure by the Company to comply with any agreement or covenant contained in this Agreement; or (v) arising out of, relating to or in connection with or alleged to arise out of, relate to or be in connection with, the Rights Offering, any of the other transactions contemplated thereby or the performance of Maxim’s services to the Company with respect to the Rights Offering, and (B) all reasonable expenses (including, but not limited to, any and all reasonable legal expenses) incurred in connection with investigating, preparing to defend or defending any lawsuit, claim or other proceeding, commenced or threatened, whether or not resulting in any liability, which legal or other expenses shall be reimbursed by the Company promptly after receipt of any invoices therefore from Maxim. However, the Company will not be obligated to indemnify an indemnified party for any loss, claim, damage, liability or expense pursuant to the preceding sentence which has been determined in a final judgment by a court of competent jurisdiction to have resulted directly from willful misconduct or gross negligence on the part of any indemnified party.
(b) The Dealer-Manager shall indemnify and hold harmless the Company, its officers, directors and employees, each of its directors and each Person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling Person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a any material fact contained in (A) in any Offer DocumentsPreliminary Prospectus, the Registration Statement or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus or (B) any application or other document, or in any such amendment or supplementsupplement thereto, in any other solicitation material used executed by the Company or authorized based upon written information furnished by it for use or on behalf of the Company filed in connection any jurisdiction in order to qualify the Shares under the securities or blue sky laws thereof or filed with the Rights Offering Commission or any securities association or securities exchange (each, an "Application"), or (B) in any Blue Sky Application; or (iiiii) the omission or alleged omission to state in any Offer DocumentsPreliminary Prospectus, the Registration Statement or in the Prospectus or any such amendment or supplement, in supplement to the Registration Statement or the Prospectus or any other solicitation material used by the Company or authorized by it for use in connection with the Rights Offering, or in any Blue Sky Application, any Application a material fact required to be stated therein or necessary to make the statements therein not misleading, but and will reimburse, as incurred, each Underwriter and each such other person for any legal or other expenses reasonably incurred by such Underwriter or such other person in each connection with investigating, defending or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case solely and exclusively to the extent that any such loss, claim, damage or liability is based solely upon an untrue statement or omission or alleged untrue statement or omission in any of such documents made in reliance upon and in conformity with information relating to any Underwriter furnished in writing to the Company by the Representative on behalf of any Underwriter expressly for inclusion therein; provided, further that such indemnity with respect to any Preliminary Prospectus shall not inure to the benefit of any Underwriter (or any such other person) from whom the person asserting any such loss, claim, damage, liability or action purchased Shares which are the subject thereof to the extent that any such loss, claim, damage or liability (i) results from the fact that such Underwriter failed to send or give a copy of the Prospectus (as amended or supplemented) to such person at or prior to the confirmation of the sale of such Shares to such person in any case where such delivery is required by the Act and (ii) arises out of or is based upon an untrue statement or omission of a material fact contained in such Preliminary Prospectus that was corrected in the Prospectus (or any amendment or supplement thereto), unless such failure to deliver the Prospectus (as amended or supplemented) was the result of noncompliance by the Company with Section 4(f). This indemnity agreement will be in addition to any liability that the Company might otherwise have. The Company will not, without the prior written consent of each Underwriter, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not such Underwriter or any person who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act is a party to each claim, action, suit or proceeding), unless such settlement, compromise or consent includes an unconditional release of each Underwriter and each such other person from all liability arising out of such claim, action, suit or proceeding.
(b) Each Underwriter will indemnify and hold harmless the Company, its employees, officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against all losses, claims, damages or liabilities (or actions in respect thereof) to which the Company and any such director, officer or controlling person may become subject under the Act or other federal, state or Commonwealth of Puerto Rico statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus or any Application, or (ii) the omission or the alleged omission to state in the Registration Statement, any Preliminary Prospectus or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus, or any Application, a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Dealer-Manager InformationCompany by such Underwriter through the Representative expressly for use therein; and, and shall reimburse subject to the limitation set forth immediately preceding this clause, will reimburse, as incurred, any legal or other expenses reasonably incurred by the Company and any such director, officer or controlling Person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling Person person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or any action as such in respect thereof. The Company acknowledges that, for all purposes under this Agreement, the statements relating to the Underwriters set forth under the heading "Underwriting" (which does not include information on the Company's expenses are incurredand the listing of the Shares) constitute the only information furnished in writing to the Company by the Representative on behalf of the Underwriters expressly for inclusion in the Registration Statement, any Preliminary Prospectus or the Prospectus. This indemnity agreement will be in addition to any liability that each Underwriter might otherwise have.
(c) If any lawsuit, claim or proceeding is brought against any Promptly after receipt by an indemnified party in respect of which indemnification may be sought against the indemnifying party pursuant to under this Section 117 of notice of the commencement of any action, such indemnified party shall promptly will, if a claim in respect thereof is to be made against an indemnifying party or parties under this Section 7, notify the indemnifying party or parties of the commencement thereof, but the omission so to notify the indemnifying party or parties will not relieve it or them from any liability which it or they may have to any indemnified party under the foregoing provisions of this Section 7 or otherwise unless, and only to the extent that, such lawsuitomission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against an indemnified party and it notifies an indemnifying party or parties of its commencement, the indemnifying party or parties against which a claim is made will be entitled to participate therein and, to the extent that it or proceedingthey may wish, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the failure so to notify the indemnifying party shall not relieve the indemnifying party from any obligation or liability which it may have under this Section 11 except to the extent that it has been prejudiced defendants in any material respect by such failure and in any event shall not relieve the indemnifying party from any other obligation or liability which it may have to such indemnified party otherwise than under this Section 11. In case any such lawsuit, claim or proceeding shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement of such lawsuit, claim or proceeding, the indemnifying party shall be entitled to participate in such lawsuit, claim or proceeding, and, after written notice from the indemnifying party to such indemnified party, to assume the defense of such lawsuit, claim or proceeding with counsel of its choice at its expense; provided, however, that such counsel shall be satisfactory to the indemnified party in the exercise of its reasonable judgment. Notwithstanding the election of the indemnifying party to assume the defense of such lawsuit, claim or proceeding, such indemnified party shall have the right to employ separate counsel and to participate in the defense of such lawsuit, claim or proceeding, and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel (and shall pay such reasonable fees, costs and expenses promptly after receipt of any invoice therefor) if: (i) the use of counsel chosen by the indemnifying party to represent such indemnified party would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such lawsuit, claim or proceeding action include both an the indemnified party and the indemnifying party, party and such the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it or to other indemnified parties which are different from or in addition additional to those available to the indemnifying party (in which case party, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses other than reasonable costs of investigation subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party); party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (iii) it being understood that, in connection with such action, the indemnifying party shall not have employed be liable for the reasonable fees and expenses of more than one separate counsel satisfactory (in addition to the fees and expenses of local counsel necessary in connection with any such proceedings) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Representative in the case of paragraph (a) of this Section 7, representing the indemnified parties under paragraph (a) who are parties to such indemnified partyaction or actions), in the exercise of such indemnified party’s reasonable judgment, to represent such indemnified party within a reasonable time after notice of the institution of any such lawsuit, claim or proceeding; or (ivii) the indemnifying party shall authorize such has authorized in writing the employment of counsel for the indemnified party to employ separate counsel at the expense of the indemnifying party. The foregoing indemnification commitments shall apply whether or not After such notice from the indemnified party is a formal indemnifying party to any such lawsuitindemnified party, claim or proceeding. The the indemnifying party shall will not be liable for the costs and expenses of any settlement of any lawsuit, claim or proceeding such action effected by such indemnified party without its the written consent (which consent will not be unreasonably withheld), but if settled with such consent, of the indemnifying party, unless such indemnified party agrees, subject to the provisions of waived its right under this Section 11, to indemnify 7 in which case the indemnified party from and against any loss, damage or liability by reason of may effect such settlement. The Company agrees to notify Maxim promptly, or cause Maxim to be notified promptly, of the assertion of any lawsuit, claim or proceeding against the Company, any of its officers or directors or any Person who controls any of the foregoing within the meaning of Section 20(a) of the Exchange Act, arising out of or relating the Rights Offering. The Company further agrees that any a settlement of a lawsuit, claim or proceeding against it arising out of Rights Offering shall include an explicit and unconditional release from the parties bringing without such lawsuit, claim or proceeding of Maxim, its respective affiliates, and any officer, director, employee or agent of Maxim, and any Person controlling (within the meaning of Section 20(a) of the Exchange Act) Maximconsent.
(d) The If the indemnification provided for in the foregoing paragraphs of this Section 7 is unavailable or insufficient to hold harmless an indemnified party under paragraph (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by an such indemnified party as a result of the such losses, claims, damages, damages or liabilities (or expenses referred to actions in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim.
respect thereof) (ei) The foregoing rights to indemnification and contribution shall be in addition to any other rights which any indemnified parties may have under common law or otherwise but shall supersede, amend and restate, retroactively, the rights to indemnification, reimbursement and contribution provided for under the Engagement Letter.
(f) In order to provide for contribution in circumstances in which the indemnification provided for in this Section 11 for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company, on the one hand, and Maxim, on the other hand, shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company, any contribution received by the Company from Persons, other than Maxim, who may also be liable for contribution, including Persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company) as incurred to which the Company and Maxim may be subject, in such proportions as proportion s is appropriate to reflect the relative benefits received by the Companyindemnifying party or parties, on the one hand, and Maximthe indemnified party, on the other handother, from the Rights Offering oroffering of the Shares or (ii) if, if such but only if, the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportions proportion as are is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, indemnifying party or parties on the one hand, and Maximthe indemnified party, on the other handother, in connection with the statements or omissions which or alleged statements or omissions that resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and Maximthe Underwriters, on the other handother, shall be deemed to be in the same proportion as: (x) as the total proceeds from the Rights Offering (net offering of the fees of the Dealer-Manager set forth in Section 6 hereof, but Shares (before deducting expenses) received by the Company bears bear to (y) the fees of total underwriting discounts and commissions received by the Dealer-Manager Underwriters, in each case as set forth in Section 6 hereof actually received by the Dealer-Manager. The relative fault of each table on the cover page of the Company, on the one hand, and Maxim, on the other hand, Prospectus. Relative fault shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Maxim (which consists solely and exclusively the Representative on behalf of the Dealer-Manager Information) Underwriters, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Dealer-Manager Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(f7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Sectionherein. The aggregate amount of losses, liabilities, claims, damages and expenses incurred paid or payable by an indemnified party and as a result of the losses, claims, damages, liabilities (or actions in respect thereof) referred to above in this Section 11 7(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing connection with investigating or defending against any litigation, or any investigation or proceeding by any judicial, regulatory or other legal or governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue action or alleged untrue statement or omission or alleged omissionclaim. Notwithstanding the provisions of this Section 11: (i) the Dealer-Manager 7(d), no Underwriter shall be required to contribute any amount in excess of the fees actually total underwriting discounts received by it with respect to the Dealer-Manager from Shares purchased by such Underwriter under this Agreement, less the Company aggregate amount of any damages that such Underwriter has otherwise been required to pay in connection with respect of the Rights Offering and (ii) no Person same or any substantially similar claim. No person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute as provided in this Section 7(d) are several in proportion to their respective underwriting obligations and not joint. For purposes of this Section 117(d), each Person controlling a Dealer-Manager person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall will have the same rights to contribution as such Dealer-ManagerUnderwriter, and each Persondirector or officer of the Company and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall will have the same rights to contribution as the Company, subject in each case to clauses the provisions of this paragraph (d). The provisions of section 7(c) shall be applicable to any claim for contribution under this Section 7(d). The contribution agreement set forth above shall be in addition to any liabilities which any indemnifying party may otherwise have. No party will be liable for contribution with respect to any action or claim settled without its written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this Section 7 and the representations and warranties of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) and any investigation made by or on behalf of the Underwriters, (ii) acceptance of any of the immediately preceding sentence. Any party entitled to contribution will, promptly after receipt Shares and payment therefor or (iii) any termination of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 11(f) or otherwiseAgreement.
Appears in 1 contract
Sources: Underwriting Agreement (Popular Inc)