Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an "Underwriter") and each Person, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "Section 4 Persons"), against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by any such Section 4 Person specifically for use in the preparation thereof; provided that in no case is the Company to be liable with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim shall not relieve it from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph; and provided, further, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended or
Appears in 5 contracts
Sources: Registration Rights Agreement (Centerpoint Energy Resources Corp), Registration Rights Agreement (Centerpoint Energy Inc), Registration Rights Agreement (Centerpoint Energy Inc)
Indemnification; Contribution. (Aa) In Indemnification by the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the Company. The Company agrees to indemnify and hold harmless ------------------------------ indemnify, to the Initial Purchasersfullest extent permitted by law, each Holder, each Participating Broker-Dealerits officers, directors, partners, employees, advisors and agents and each Person who participates as an underwriter controls (any such Person being an "Underwriter") and each Person, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "Section 4 Persons"), Exchange Act) such Holder from and against any and all losses, claims, damages, liabilities or and expenses (including reasonable costs of investigation or defending such claim and any amounts paid in any settlement effected with the reasonable cost Company's consent) arising out of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon either the 1933 Act(i) any untrue, or allegedly untrue, statement of a material fact contained in any registration statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if the 1934 Act, Company shall have furnished any amendments or supplements thereto) or (ii) any other statute or at common law, on the ground omission or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of material fact or omitted omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such statement except insofar as the same are caused by or omission was made contained in reliance upon, and in conformity with, written any information furnished in writing to the Company by any such Section 4 Person specifically Holder expressly for use in therein. The Company shall also indemnify any underwriters of the preparation thereof; Registrable Securities, their officers, directors and employees and each Person who controls such underwriters (within the meaning of the 1933 Act and the Exchange Act) to the same extent as provided that in no case is the Company to be liable above with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information indemnification of the nature Holders of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim shall not relieve it from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph; and provided, further, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended orRegistrable Securities.
Appears in 4 contracts
Sources: Securities Purchase Agreement (Global Diamond Resources Inc), Securities Purchase Agreement (G P Properties Inc), Securities Purchase Agreement (Global Diamond Resources Inc)
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an "Underwriter") and each Person, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "Section 4 Persons"), against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by any such Section 4 Person specifically for use in the preparation thereof; provided that in no case is the Company to be liable with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim shall not relieve it from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph; and provided, further, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended oror supplemented, exclusive of the material incorporated by reference) had not been sent or given by 18
Appears in 2 contracts
Sources: Registration Rights Agreement (Centerpoint Energy Inc), Registration Rights Agreement (Centerpoint Energy Inc)
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or Incident to any registration statement referred to in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealerthis Agreement, the Company agrees to will indemnify and hold harmless the Initial Purchaserseach underwriter, each Holder, each Participating Broker-Dealer, each Person Holder who participates as an underwriter (offers or sells any such Person being an Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "UnderwriterSelling Holder") ), and each Person, if any, person who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter of them within the meaning of Section 15 of the 1933 Securities Act or Section 20 of the 1934 Exchange Act (collectivelya "Controlling Person")), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigation, reasonable attorney's fees and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the "Section 4 Persons"Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (x) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (y) any omission or alleged omission to state in such document a material fact required to be stated in it, in light of the circumstances under which it was made, or necessary to make the statements in it not misleading, or (z) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to an untrue statement or omission or alleged untrue statement or omission made in reliance upon the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), from and against any and all losses, claims, damages, expenses and liabilities, joint or several, to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise to the same extent provided in the immediately preceding sentence. The Company shall not be obligated hereunder to indemnify any Holder for any amount paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld). In no event, however, shall the liability of a Selling Holder for indemnification under this Section 5 exceed the lesser of (x) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (y) the proceeds received by such Selling Holder from its sale of Registrable Securities under such registration statement.
(B) If the indemnification provided for in Section 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 5, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (including x) in such proportion as is appropriate to reflect the reasonable cost relative benefits received by the Company, the other Selling Holders and the underwriters from the offering of investigating the Registrable Securities or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) above but also the relative fault of the Company, the other Selling Holders and defending against any claims therefore and counsel fees incurred the underwriters in connection therewith with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as such expenses are incurred), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or well as any other statute or at common lawrelevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the ground cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company, the Selling Holders and the underwriters shall be determined by reference to, among other things, whether the untrue or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of a material fact or omitted the omission or alleged omission to state a material fact required relates to be stated therein information supplied by the Company, the Selling Holders or necessary in order the underwriters and the parties' relative intent, knowledge, access to make the statements therein not misleading, unless information and opportunity to correct or prevent such statement or omission was made in reliance uponomission. The Company, the Selling Holders, and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account the equitable considerations referred to in conformity withthe immediately preceding paragraph. In no event, written information furnished however, shall a Selling Holder be required to contribute any amount under this Section 5(b) in excess of the lesser of (x) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the Company proportion of the total Registrable Securities sold under such registration statement which are being sold by such Selling Holder or (y) the proceeds received by such Selling Holder from its sale of Registrable Securities under such registration statement. No person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
(C) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 5 shall be 10 deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 4 Person specifically for use 5 will remain in the preparation thereof; provided that in no case is the Company to be liable with respect to full force and effect regardless of any claims investigation made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons by or other first legal process giving information on behalf of the nature indemnified parties or any officer, director, employee, agent or controlling person of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim shall not relieve it from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph; and provided, further, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended orindemnified parties.
Appears in 2 contracts
Sources: Registration Rights Agreement (Physicians Specialty Corp), Registration Rights Agreement (Physicians Specialty Corp)
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the Company agrees to indemnify and hold harmless the Initial Purchasers, their respective affiliates, each Holder, each Participating Broker-Dealer, Dealer and each Person who participates as an underwriter (any such Person being an "“Underwriter"”) and each Person, if any, who controls any Initial Purchaser, Dealer Manager, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "“Section 4 Persons"”), against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included includes or allegedly included includes an untrue statement of material fact or omitted omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by any such Section 4 Person specifically for use in the preparation thereof; provided that in no case is the Company to be liable with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim (i) shall not relieve it the Company from liability under this paragraph unless and to the extent the Company did not otherwise learn of such claim and such failure results in the forfeiture by the Company of substantial rights and defenses and (ii) shall not relieve the Company from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph. The Company will be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any such liability, but, if the Company elects to assume the defense, such defense shall be conducted by counsel chosen by it; and provided, furtherhowever, that such counsel shall be reasonably satisfactory to such Section 4 Persons. In the event that the Company elects to assume the defense of any such suit and retains such counsel, each Section 4 Person may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) the Company shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit include the Section 4 Person and the Section 4 Persons and the Company have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to the Company, in which case the Company shall not be entitled to assume the defense of such suit on behalf of such Section 4 Person, notwithstanding its obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that the foregoing Company shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings 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 (and not more than one local counsel) at any time for all such Section 4 Persons, which firm shall be designated in writing by the Initial Purchasers and Dealer Managers. The Company shall not be liable to indemnify any Person for any settlement of any such claim effected without the Company’s prior written consent, which consent shall not be unreasonably withheld. The Company shall not, without the prior written consent of the Section 4 Person, 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 Section 4 Person is or could have been a party and indemnity was or could have been sought hereunder by such Section 4 Person, unless such settlement, compromise or consent (x) includes an unconditional release of such Section 4 Person from all liability on claims that are the subject matter of such action, suit or proceeding 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 Section 4 Person. This indemnity agreement will be in addition to any liability, which the Company might otherwise have.
(B) Each Section 4 Person agrees severally and not jointly to indemnify and hold harmless the Company, each of the Company’s directors, each of the Company’s officers who have signed the Registration Statement 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, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefor and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon the 1933 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) includes or allegedly includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, but only insofar as any such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by such Section 4 Person specifically for use in the preparation thereof; provided that in no case is such Section 4 Person to be liable with respect to any Prospectusclaims made against the Company or any such director, including officer or controlling person unless the Company or any preliminary prospectus such director, officer or preliminary prospectus supplement, controlling person shall not inure to the benefit of any have notified such Section 4 Person if in writing within a copy reasonable time after the summons or other first legal process giving information of the Prospectus nature of the claim shall have been served upon the Company or any such director, officer or controlling person, but failure to notify such Section 4 Person of any such claim (i) shall not relieve such Section 4 Person from liability under this paragraph unless and to the extent such Section 4 Person did not otherwise learn of such action and such failure results in the forfeiture by such Section 4 Person of substantial rights and defenses and (ii) shall not relieve such Section 4 Person from any liability which it may have to the Company or any such director, officer or controlling person otherwise than on account of the indemnity agreement contained in this paragraph. Such Section 4 Person will be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any such liability, but, if such Section 4 Person elects to assume the defense, such defense shall be conducted by counsel chosen by it. In the event that such Section 4 Person elects to assume the defense of any such suit and retain such counsel, the Company or such director, officer or controlling person, defendant or defendants in the suit, may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) such Section 4 Person shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit include the Company or any such director, officer or controlling person and such Section 4 Person and the Company or such director, officer or controlling person have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to such Section 4 Person, in which case such Section 4 Person shall not be entitled to assume the defense of such suit on behalf of the Company or such director, officer or controlling person, notwithstanding its obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that such Section 4 Person shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings 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 a separate firm of attorneys (and not more than one local counsel) at any time for all of the Company and any such director, officer or controlling person, which firm shall be designated in writing by the Company. Such Section 4 Person shall not be liable to indemnify any person for any settlement of any such claim effected without such Section 4 Person’s prior written consent, which consent shall not be unreasonably withheld. This indemnity agreement will be in addition to any liability which such Section 4 Person might otherwise have.
(C) If the indemnification provided for in this Section 4 is unavailable or insufficient to hold harmless an indemnified party under subsections (A) or (B) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as amended ora 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 on the one hand and the Section 4 Persons on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Section 4 Person on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits of such indemnifying party and indemnified party shall be determined by reference to the relative benefits received by the Company from the initial offering and sale of the Securities, on the one hand, and by a holder from receiving Registrable Securities or Exchange Securities registered under the Securities Act, on the other. The relative fault of the 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 or the Section 4 Persons and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue or alleged untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (C) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (C). Notwithstanding the provisions of this Section 4(C), no Section 4 Person shall be required to contribute any amount in excess of the amount by which the dollar amount of the proceeds received by such Section 4 Person from the sale of any Registrable Securities (after deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages which such Section 4 Person has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Section 4 Persons’ obligations in this subsection (C) to contribute are several in proportion to the principal amount of Registrable Securities registered or underwritten, as the case may be, by them and not joint.
Appears in 2 contracts
Sources: Registration Rights Agreement (Centerpoint Energy Resources Corp), Registration Rights Agreement (Centerpoint Energy Resources Corp)
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the Company Issuer hereby agrees to indemnify and hold harmless the Initial PurchasersAgent and its affiliates, each Holdertheir respective directors, each Participating Broker-Dealerofficers, each Person who participates as an underwriter (any such Person being an "Underwriter") employees, partners, agents, shareholders and each Person, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act legal counsel (collectively, the "Section 4 PersonsINDEMNIFIED PARTIES" and individually, an "INDEMNIFIED PARTY"), to the full extent lawful, from and against any and all expenses, losses, claims, damagesactions, liabilities or expenses (including the reasonable cost of investigating damages and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurred)liabilities, joint or several, which (including the aggregate amount paid in reasonable settlement of any actions, suits, proceedings, investigations or claims, and the reasonable fees and expenses of their counsel that may be based upon either the 1933 Actincurred in advising with respect to and/or defending any actions, suits, proceedings, investigations or the 1934 Act, claims that may be made or threatened against any other Indemnified Party but not including any amount for lost profits) to which any Indemnified Party may become subject or otherwise involved in any capacity under any statute or at common lawlaw or otherwise (collectively, on "CLAIMS" and individually a "CLAIM") insofar as such Claims relate to, are caused by, result from, arise out of or are based upon, directly or indirectly:
(i) any information or statement (except any information or statement relating solely to the ground or alleged ground that any Registration Statement (or any amendment or supplement theretoAgent) pursuant to which Exchange Securities or Registrable Securities were registered under contained in the 1933 Act Final Prospectus or any Prospectus included therein Amendment or in any certificate or other document of Issuer, delivered to the Agent pursuant to this Agreement which at the time and in the light of the circumstances under which it was made contains or is alleged to contain a misrepresentation;
(ii) any omission or alleged omission to state in the Final Prospectus, any Prospectus Amendment or any amendment certificate or supplement thereto) included or allegedly included an untrue statement other document of material Issuer, delivered to the Agent pursuant to this Agreement, any fact or omitted (except facts relating solely to state a material fact the Agent), required to be stated therein in such document or necessary in order to make any statement in such document not misleading in light of the statements therein not misleadingcircumstances under which it was made;
(iii) any order made or enquiry, unless such investigation or proceeding commenced or threatened by any securities regulatory authority or any other competent authority based upon any untrue statement or omission was made in reliance uponor alleged untrue statement or alleged omission or any misrepresentation or alleged misrepresentation (except a statement, and in conformity withalleged omission or alleged misrepresentation or alleged statement, written information furnished omission or misrepresentation relating solely to the Company by any such Section 4 Person specifically for use Agent) in the preparation thereofFinal Prospectus or any Prospectus Amendment or in any other document of Issuer, filed with the Canadian securities regulatory authorities or based upon any failure to comply with the Canadian Securities Laws (other than any failure or alleged failure to comply by the Agent), preventing or restricting the trading in or the sale or Distribution of the Offered Common Shares in any of the Qualifying Province; or
(iv) the breach by Issuer of any representation or warranty set forth herein or the failure of Issuer to comply with any of its obligations hereunder. Notwithstanding the foregoing, the indemnity provided above shall not apply to the extent that such Claims to which the Indemnified Party may be subject were primarily caused by the negligence, bad faith, wilful misconduct or breach of securities laws or the rules and regulations of any stock exchange by the Indemnified Party. If for any reason (other than determinations as to any of the events referred to in the second paragraph of this indemnity) the foregoing indemnification is unavailable to the Agent or any other Indemnified Party or insufficient to hold the Agent or any other Indemnified Party, harmless, Issuer shall contribute to the amount paid or payable by the Agent or the other Indemnified Party as a result of such expense, loss, claim, action, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the Issuer on the one hand and the Agent or any other Indemnified Party on the other hand but also the relative fault of the Issuer, the Agent or any other Indemnified Party as well as any relevant equitable considerations; provided that Issuer shall in no any event contribute any amount paid or payable by the Agent or any other Indemnified Party as a result of such Claim which exceeds in the aggregate the amount of the fees received by the Agent hereunder. Issuer agrees that, in respect of any matter for which indemnity may be sought against it, in case is any legal proceeding shall be brought against Issuer by any governmental commission or regulatory authority or any stock exchange or other entity having regulatory authority, either domestic or foreign, or any such authority shall investigate Issuer and the Company Agent or any other Indemnified Party shall be required to testify in connection therewith or shall be liable with respect required to any claims made against any Section 4 Person unless respond to procedures designed to discover information regarding, in connection with, or by reason of the attached letter agreement, the engagement of the Agent thereunder, or the performance of professional services rendered to Issuer by the Agent thereunder, the Agent or such Section 4 Person other Indemnified Party shall have notified the Company right to employ their own counsel in connection therewith, and the reasonable fees and expenses of such counsel as well as the reasonable costs (including any amount to reimburse the Agent for time spent by its, or any of its affiliates, directors, officers, employees, partners or agents in connection therewith), and out-of-pocket expenses incurred by such persons in connection therewith shall be paid by Issuer as they occur, provided that the conduct of the Agent or other Indemnified Party is not the subject matter of the legal proceeding, investigation or enquiry or examination. Promptly after receiving notice of an action, suit, proceeding or claim against the Agent or any other Indemnified Party or receipt of notice of the commencement of any investigation which is based, directly or indirectly, upon any matter in respect of which indemnification may be sought from Issuer, the Agent or other Indemnified Party will notify Issuer in writing within a reasonable time after the summons or other first legal process giving information of the nature particulars thereof, will provide copies of all relevant documentation to Issuer and, unless Issuer participates in the defence thereof as contemplated herein, will keep Issuer advised of the claim shall have been served upon such Section 4 Person, but failure progress thereof and will discuss all significant actions proposed. The omission to so notify the Company of any such claim Issuer shall not relieve it from Issuer of any liability which it may have to the Agent or any other Indemnified Party except only to the extent that any such Section 4 Person delay in or failure to give notice as herein required prejudices the defence of such action, suit, proceeding, claim or investigation or results in any material increase in the liability which Issuer would otherwise than on account have under this indemnity had the Agent or other Indemnified Party not delayed in or failed to give the notice required hereunder. Issuer shall be entitled, at its own expense, to participate in an action, suit, proceeding, claim or investigation referred to above, provided such defence is conducted by experienced and competent counsel for Issuer which, with the Agent's or other Indemnified Party's consent, may be the Agent's or other Indemnified Party's counsel. No admission of liability and no settlement of any action, suit, proceeding, claim or investigations shall be made without the consent of the indemnity agreement contained in this paragraph; Indemnified Parties affected, such consent not to be unreasonably withheld. No admission of liability shall be made and providedIssuer shall not be liable for any settlement of any action, furthersuit, proceeding, claim or investigation made without its consent, such consent not to be unreasonably withheld. Issuer hereby acknowledges that the foregoing indemnity Agent acts as trustee for other Indemnified Parties of Issuer's covenants hereunder with respect to such persons and the Agent agrees to accept such trust and to hold and enforce such covenants on behalf of such persons. Issuer hereby waives any Prospectusright it may have of first requiring any Indemnified Party to proceed against or enforce any other right, including power, remedy or security or claim payments form any preliminary prospectus other person before claiming indemnity or preliminary prospectus supplementcontribution hereunder. The indemnity and contribution obligations of Issuer hereunder shall be in addition to any liability which Issuer may otherwise have, shall not extend upon the same terms and conditions to the Indemnified Parties, shall be binding upon and inure to the benefit of any Section 4 Person if a copy successors, permitted assigns, heirs and personal representatives of Issuer, the Agent and any other Indemnified Party. The foregoing provisions shall survive the completion of professional services rendered hereunder or any termination of the Prospectus (as amended orauthorization given hereby.
Appears in 1 contract
Sources: Agency Agreement (Northwestern Mineral Ventures Inc.)
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an "Underwriter") and each Person, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "Section 4 Persons"), against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurredtherewith), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by any such Section 4 Person specifically for use in the preparation thereof; provided PROVIDED that in no case is the Company to be liable with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim shall not relieve it from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph; and providedPROVIDED, furtherFURTHER, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended or supplemented) at the time of sale had not been sent or given by or on behalf of such Section 4 Person to the Person asserting any such losses, claims, damages or liabilities concurrently with or prior to delivery of the written confirmation of the sale of Exchange Securities or Registrable Securities, as the case may be, to such Person and the untrue statement or omission of a material fact contained in any such Prospectus was corrected in the Prospectus (as amended or supplemented). The Company will be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any such liability, but, if the Company elects to assume the defense, such defense shall be conducted by counsel chosen by it. In the event that the Company elects to assume the defense of any such suit and retains such counsel, each Section 4 Person may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) the Company shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to the Company, in which case the Company shall not be entitled to assume the defense of such suit on behalf of such Section 4 Person, notwithstanding their obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that the Company shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings 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 Section 4 Persons, which firm shall be designated in writing by BofA. The Company shall not be liable to indemnify any Person for any settlement of any such claim effected without the Company's consent. This indemnity agreement will be in addition to any liability, which the Company might otherwise have.
(B) Each Section 4 Person agrees to indemnify and hold harmless the Company, each of the Company's directors, each of the Company's officers who have signed the Registration Statement 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, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefor and counsel fees incurred in connection therewith), joint or several, which may be based upon the 1933 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, but only insofar as any such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by such Section 4 Person specifically for use in the preparation thereof; PROVIDED that in no case is such Section 4 Person to be liable with respect to any claims made against the Company or any such director, officer or controlling person unless the Company or any such director, officer or controlling person shall have notified such Section 4 Person in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon the Company or any such director, officer or controlling person, but failure to notify such Section 4 Person of any such claim shall not relieve it from any liability which it may have to the Company or any such director, officer or controlling person otherwise than on account of the indemnity agreement contained in this paragraph. Such Section 4 Person will be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any such liability, but, if such Section 4 Person elects to assume the defense, such defense shall be conducted by counsel chosen by it. In the event that such Section 4 Person elects to assume the defense of any such suit and retain such counsel, the Company or such director, officer or controlling person, defendant or defendants in the suit, may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) such Section 4 Person shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit include the Company or any such director, officer or controlling person and such Section 4 Person and the Company or such director, officer, trustee or controlling person have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to such Section 4 Person, in which case such Section 4 Person shall not be entitled to assume the defense of such suit on behalf of the Company or such director, officer or controlling person, notwithstanding its obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that such Section 4 Person shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings 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 of the Company and any such director, officer or controlling person, which firm shall be designated in writing by the Company. Such Section 4 Person shall not be liable to indemnify any person for any settlement of any such claim effected without such Section 4 Person's consent. This indemnity agreement will be in addition to any liability which such Section 4 Person might otherwise have.
(C) If recovery is not available under Section 4(A) or 4(B) hereof, for any reason other than as specified therein, the Persons entitled to indemnification by the terms thereof shall be entitled to contribution for liabilities and expenses, except to the extent that contribution is not permitted under Section 1l(f) of the 1933 Act. In determining the amount of contribution to which the respective Persons are entitled, there shall be considered (i) the benefits received by the Company, on the one hand, from the offering of the Securities and such Section 4 Person, on the other hand, from the sale of its Securities, Exchange Securities or Registrable Securities, as the case may be, (ii) the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, (iii) the opportunity to correct and prevent any statement or omission and (iv) any other equitable considerations appropriate under the circumstances. The Company and the Section 4 Persons agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation (even if the Section 4 Persons were treated as one entity for such purpose). No Section 4 Person shall be obligated to make such contribution hereunder which in the aggregate exceeds the total public offering price of its Exchange Securities and/or Registrable Securities registered under the Registration Statement, less the aggregate amount of any damages which such Section 4 Person has otherwise been required to pay in respect of the same claim or any substantially similar claim. Any Section 4 Person's obligations to contribute under this Section 4 are several in proportion to the aggregate principal amount of such Section 4 Person's Registrable or Exchange Securities, as the case may be, that were registered pursuant to such Registration Statement, and not joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Reliant Energy Resources Corp)
Indemnification; Contribution. (Aa) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the The Company agrees to indemnify and hold harmless the Initial Purchaserseach Holder (including, without limitation, each HolderInitial Purchaser) who has provided information to the Company in accordance with Section 2.01(d), each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an "Underwriter") and each Person, if any, who controls any such Initial Purchaser, Holder, Participating Broker-Dealer Purchaser or Underwriter Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "Section 4 Persons"), from and against any and all losses, claims, damagesdamages and liabilities (including, liabilities without limitation, any legal or other expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees reasonably incurred in connection therewith as with defending or investigating any such expenses are incurred), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or claim) caused by any other statute or at common law, on the ground untrue statement or alleged ground that untrue statement of a material fact contained in any Shelf Registration Statement (or Statement, any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act Issuer Free Writing Prospectus or any Prospectus included therein (or caused by any amendment omission or supplement thereto) included or allegedly included an untrue statement of material fact or omitted alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless except insofar as such losses, claims damages or liabilities are caused by any such untrue statement or omission was made in reliance upon, and in conformity with, written or alleged untrue statement or omission based upon information furnished to the Company in writing by such Holder or Initial Purchaser through the Representatives expressly for use therein.
(b) Each Holder who has provided information to the Company in accordance with Section 2.01(d) agrees severally and not jointly to indemnify and hold harmless the Company, and the other selling Holders (including, without limitation, each Initial Purchaser) who have provided information to the Company in accordance with Section 2.01(d) and each Person, if any, who controls the Company or any such other selling Holder within the meaning of Section 4 Person specifically 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from the Company to such Holder, such Initial Purchaser, and such other Holders, but only with reference to information relating to such Holder furnished to the Company in writing by such Holder expressly for use in the preparation thereof; provided Shelf Registration Statement, any such Issuer Free Writing Prospectus or such Prospectus.
(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 Section 4.01(a) or (b), such Person (the “indemnified party”) shall promptly notify the Person against whom such indemnity may be sought (the “indemnifying party”) in writing and 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 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 party 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 no case is connection with any proceeding or related proceedings in the Company to same jurisdiction, be liable with respect for the fees and expenses of more than one separate firm (in addition to any claims made against any Section 4 Person unless local counsel) for all such Section 4 Person indemnified parties and that all such fees and expenses shall have notified be reimbursed as they are incurred. In the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company case of any such claim separate firm for the Initial Purchasers and such control persons of the Initial Purchasers, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Company and such directors, officers and controlling persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Holders indemnified pursuant to Section 4.01(a), such firm shall be designated in writing by the Holders of a majority (with Holders of Notes deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Notes are or would be convertible as of the date on which such designation is made) of the Registrable Securities covered by the Shelf Registration Statement and sold by Holders that are indemnified parties pursuant to Section 4.01(a). The indemnifying party shall not relieve 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 by the second and third sentences of this paragraph, the indemnifying party agrees that is shall be liable for any such 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 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 party.
(d) If the indemnification provided for in Section 4.01(a) or (b) is unavailable to an indemnified party in respect of any losses, claims, damages or liabilities for which indemnification is provided therein, then each indemnifying party under such Section, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company shall be deemed to be equal to the total net proceeds from the initial placement pursuant to the Purchase Agreement (before deducting expenses) of the Registrable Securities to which such losses, claims, damages or liabilities relate. The relative benefits received by any Holder shall be deemed to be equal to the value of receiving registration rights under this Agreement for the Registrable Securities. The relative fault of the Holders on the one hand and the Company 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 Holders or by the Company, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Holders’ respective obligations to contribute pursuant to this Section 4.01(d) are several in proportion to the respective number of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint.
(e) The parties agree that it from would not be just and equitable if contribution pursuant to this Section 4.01 were determined by pro rata allocation or by any liability other method of allocation which it may have to such Section 4 Person otherwise than on does not take account of the indemnity agreement contained equitable considerations referred to in this paragraph; Section 4.01(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and providedliabilities referred to in Section 4.01(d) shall be deemed to include, further, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, shall not inure subject to the benefit limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 4.01(e), no indemnifying party that is a selling Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Securities sold by it exceeds the amount of any Section 4 damages which such indemnifying party has otherwise paid or been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person if a copy guilty of fraudulent misrepresentation (within the Prospectus (as amended ormeaning of
Appears in 1 contract
Sources: Registration Rights Agreement (Cadence Design Systems Inc)
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the The Company agrees to indemnify and hold harmless each Holder covered by the Initial PurchasersShelf Registration Statement, each HolderInitial Purchaser, the directors, officers, employees, Affiliates and agents of each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an "Underwriter") Holder or Initial Purchaser and each Person, if any, person who controls any such Holder or Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter Purchaser within the meaning of Section 15 of either the 1933 Act or Section 20 of the 1934 Act (collectively, the "Section 4 Persons"), ) against any and all losses, claims, damages, liabilities damages or expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurred)liabilities, joint or several, to which they or any of them may be based upon either become subject under the 1933 Act, the 1934 Act or other federal or state 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 any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement as originally filed or in any amendment thereof, or in any preliminary Prospectus or the 1934 ActProspectus, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or in any amendment thereof or supplement thereto) pursuant to which Exchange Securities , or Registrable Securities were registered under arise out of or are based upon the 1933 Act omission or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of material fact or omitted alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein (in the case of any preliminary Prospectus or the Prospectus, in the light of the circumstances under which they were made) not misleading, unless and agrees 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 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 was or alleged omission made therein in reliance upon, upon and in conformity with, with written information furnished to the Company by any such Section 4 Person or on behalf of the party claiming indemnification specifically for use in inclusion therein and provided, further that the preparation thereof; provided that in no case is the Company to be liable foregoing indemnity agreement with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim shall not relieve it from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph; and provided, further, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, Prospectus shall not inure to the benefit of any Section 4 Person if it shall be established that a copy of the Prospectus (as amended oror supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Section 4 Person to the Person asserting such losses, claims, damages or liabilities, at or prior to the written confirmation of the sale of the Securites to such Person and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability, and if the Company had previously furnished copies thereof to such Section 4 Persons. This indemnity agreement shall be in addition to any liability that the Company may otherwise have. The Company also agrees to indemnify as provided in this Section 4(A) or contribute as provided in Section 4(D) hereof to Losses of each underwriter, if any, of Securities registered under the Shelf Registration Statement, its directors, officers, employees, Affiliates or agents and each person who controls such underwriter on substantially the same basis as that of the indemnification of the Initial Purchasers and the selling Holders provided in this paragraph (a) and shall, if requested by any Holder, enter into an underwriting agreement reflecting such agreement, as provided in Section 3(N) hereof.
(B) Each Holder covered by the Shelf Registration Statement (including each Initial Purchaser that is a Holder, in such capacity) severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Shelf Registration Statement and each person who controls the Company within the meaning of either the 1933 Act or the 1934 Act, to the same extent as the foregoing indemnity from the Company to each such Holder, but only with reference to written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement shall be acknowledged by each Notice Holder that is not an Initial Purchaser in such Notice Holder's Notice and Questionnaire and shall be in addition to any liability that any such Notice Holder may otherwise have.
(C) Promptly after receipt by an indemnified party under this Section 4 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 4, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (A) or (B) above 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 obligations to any indemnified party other than the indemnification obligation provided in paragraph (A) or (B) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party's choice at the 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. Notwithstanding the indemnifying party's election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. It is understood, however, that the Company shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings 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 shall be designated in writing by the Citigroup Global Markets Inc. 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 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 (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement.
(D) In the event that the indemnity provided in paragraph (A) or (B) of this Section 4 is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party shall have a joint and several obligation to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending loss, claim, liability, damage or action) (collectively "Losses") to which such indemnified party may be subject in such proportion as is appropriate to reflect the relative benefits received by such indemnifying party, on the one hand, and such indemnified party, on the other hand, from the Initial Placement and the Shelf Registration Statement which resulted in such Losses; provided, however, that in no case shall any Initial Purchaser be responsible, in the aggregate, for any amount in excess of the purchase discount or commission applicable to such Security, as set forth in the Purchase Agreement, nor shall any underwriter be responsible for any amount in excess of the underwriting discount or commission applicable to the securities purchased by such underwriter under the Shelf Registration Statement which resulted in such Losses. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the indemnifying party and the indemnified party shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of such indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the Initial Placement (before deducting expenses) as set forth in the Offering Memorandum. Benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions as set forth in the Purchase Agreement, and benefits received by any other Holders shall be deemed to be equal to the value of receiving Securities registered under the 1933 Act. Benefits received by any underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set forth on the cover page of the Prospectus forming a part of the Shelf Registration Statement which resulted in such Losses. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information provided by the indemnifying party, on the one hand, or by the indemnified party, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The parties agree that it would not be just and equitable if contribution were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (D), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 4, each person who controls a Holder within the meaning of either the 1933 Act or the 1934 Act and each director, officer, employee and agent of such Holder shall have the same rights to contribution as such Holder, and each person who controls the Company within the meaning of either the 1933 or the 1934 Act, each officer of the Company who shall have signed the Shelf Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (D).
(E) The provisions of this Section 4 shall remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or the Company or any of the indemnified persons referred to in this Section 4, and shall survive the sale by a Holder covered by the Shelf Registration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Beazer Homes Usa Inc)
Indemnification; Contribution. (Aa) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the The Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an "Underwriter") Underwriter and each Personperson, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 Act, and each and all of the 1934 Act (collectivelythem, the "Section 4 Persons"), from and against any and all losses, claims, damages, liabilities or expenses actions, joint or several (including the reasonable cost of investigating any investigation, legal and defending against any claims therefore and counsel fees other expenses incurred in connection therewith with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted), to which they or any of them may become subject under the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act") or other federal or state statutory law or regulation, at common law or otherwise, insofar as such expenses are incurred)losses, joint claims, damages, liabilities or several, which may be based upon either the 1933 Actactions arise out of, or the 1934 Actare based upon, or any other statute or at common law, on the ground untrue statement or alleged ground that untrue statement of a material fact contained in the Registration Statement, any Registration Statement (preliminary prospectus, the Prospectus or any amendment or supplement thereto) pursuant to which Exchange Securities , or Registrable Securities were registered under the 1933 Act omission or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of material fact or omitted alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, unless however, that (1) the indemnity agreements of the Company contained in this Section 11(a) shall not apply to any such losses, claims, damages, liabilities or actions if such statement or omission was made in reliance upon, upon and in conformity with, written with information furnished in writing to the Company by or on behalf of any Underwriter for use in such preliminary prospectus, the Registration Statement or the Prospectus, or such amendment or supplement, as specified in Section 3(iii) hereof, and (2) the indemnity agreements contained in this Section 1l (a) with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages, liabilities or actions purchased the Units which are the subject thereof if at or prior to the written confirmation of the sale of the Units a copy of the Prospectus (or the Prospectus as amended or supplemented) was not sent or delivered to such person and the untrue statement or omission of a material fact contained in such preliminary prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented), unless such failure to deliver the Prospectus was a result of noncompliance by the Company with the provisions of Section 4 Person 7(b).
(b) Each Underwriter agrees to indemnify and hold harmless the Company, its directors, its officers who shall have signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Act, to the same extent as the foregoing indemnity from the Company to such Underwriter, but only insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any statement in or omission or alleged omission from the Registration Statement, and preliminary prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Underwriters specifically for use in connection with the preparation thereofof the Registration Statement, any preliminary prospectus or the Prospectus or any such amendment or supplement thereto; provided provided, however, that in no case is the Company aggregate amount which may be recovered from each Underwriter pursuant to the indemnification granted hereby shall be limited to the total price at which the Units purchased by such Underwriter hereunder were offered to the public.
(c) Any party which proposes to assert the right to be liable with indemnified under this Section 11 will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim is to any claims be made against any an indemnifying party under this Section 4 Person unless 11, notify each such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information indemnifying party of the nature commencement of the claim shall have been served upon such Section 4 Personaction, suit or proceeding, enclosing a copy of all papers served, but failure the omission so to notify the Company such indemnifying party of any such claim action, suit or proceeding shall not relieve it from any liability which it may have to such Section 4 Person any indemnified party otherwise than on account under this Section 11. In case any such action, suit or proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the indemnity agreement contained commencement thereof, the indemnifying party shall be entitled to participate in this paragraphand, 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 notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof the indemnifying party shall not be liable to such indemnified party for any legal or other expenses, other than reasonable costs of investigation subsequently incurred by such indemnified party in connection with the defense thereof. The indemnified party shall have the right to employ its counsel in any such action, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless ( i ) the employment of counsel by such indemnified party has been authorized by the indemnifying parties, (ii) the indemnified party shall have reasonably concluded that there may be a conflict of interest between the indemnifying parties and the indemnified party in the conduct of the defense of such action (in which case the indemnifying parties shall not have the right to direct the defense of such action on behalf of the indemnified party) or (iii) the indemnifying parties shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying parties. An indemnifying party shall not be liable for any settlement of any action or claims effected without its written consent.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in Section 11(a) or Section 11(b) for any reason is held to be unavailable from the Company or the Underwriters, the Company, and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (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 any contribution received by the Company from persons other than the Underwriters, such as persons who control the Company within the meaning of the Act or the Exchange Act, officers of the Company who signed the Registration Statement and directors of the Company, who may also be liable for contribution) to which the Company, 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 underwriting discount appearing on the cover page of the Prospectus bears to the public offering price appearing thereon, and the Company is responsible for the balance; and provided, furtherhowever, that ( i ) in no case shall any Underwriter (except as may be provided in the foregoing indemnity Agreement Among Underwriters) be responsible for any amount in excess of the underwriting discount applicable to the Units purchased by such Underwriter hereunder and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 1l (f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 1l (d), each person, if any, who controls an Underwriter within the meaning of the Act shall have the same rights to contribution as such Underwriter, and each person, if any, who controls the Company within the meaning of the 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 this Section 11(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 parties under this Section 11(d), notify such party or parties from whom contribution may be sought, but the omission so to notify such party or parties from whom contribution may be sought 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(d). No party shall be liable for contribution with respect to any Prospectusaction or claim settled without its consent.
(e) The respective indemnity and contribution agreements by the Underwriters and the Company contained in this Section 11, including any preliminary prospectus or preliminary prospectus supplementand the covenants, representations and warranties of the Company set forth in Sections 3, 8 and 10 hereof, shall not inure remain operative and in full force and effect regardless of ( i ) any investigation made by any Underwriter or on its behalf or by or on behalf of any person who controls an Underwriter or the Company or any controlling person of the Company or any director or any officer of the Company, (ii) acceptance of any of the Shares and Warrants comprising the Units and payment therefor or (iii) any termination of this Agreement, and shall survive the delivery of the Shares and Warrants comprising the Units, and any successor of any Underwriter, or the Company or of any person who controls an Underwriter or the Company, as the case may be, shall be entitled to the benefit of any Section 4 Person if a copy of the Prospectus (as amended orsuch respective indemnity and contribution agreements.
Appears in 1 contract
Sources: Underwriting Agreement (Worldwide Forest Products Inc)
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the The Company agrees to indemnify and hold harmless the Initial Purchasers, the Dealer-Managers, their respective affiliates, each Holder, each Participating Broker-Dealer, Dealer and each Person who participates as an underwriter (any such Person being an "“Underwriter"”) and each Person, if any, who controls any Initial Purchaser, Dealer Manager, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "“Section 4 Persons"”), against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included includes or allegedly included includes an untrue statement of material fact or omitted omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by any such Section 4 Person specifically for use in the preparation thereof; provided that in no case is the Company to be liable with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim (i) shall not relieve it the Company from liability under this paragraph unless and to the extent the Company did not otherwise learn of such claim and such failure results in the forfeiture by the Company of substantial rights and defenses and (ii) shall not relieve the Company from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph. The Company will be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any such liability, but, if the Company elects to assume the defense, such defense shall be conducted by counsel chosen by it; and provided, furtherhowever, that such counsel shall be reasonably satisfactory to such Section 4 Persons. In the event that the Company elects to assume the defense of any such suit and retains such counsel, each Section 4 Person may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) the Company shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit include the Section 4 Person and the Section 4 Persons and the Company have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to the Company, in which case the Company shall not be entitled to assume the defense of such suit on behalf of such Section 4 Person, notwithstanding its obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that the foregoing Company shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings 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 (and not more than one local counsel) at any time for all such Section 4 Persons, which firm shall be designated in writing by the Initial Purchasers and Dealer Managers. The Company shall not be liable to indemnify any Person for any settlement of any such claim effected without the Company’s prior written consent, which consent shall not be unreasonably withheld. The Company shall not, without the prior written consent of the Section 4 Person, 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 Section 4 Person is or could have been a party and indemnity was or could have been sought hereunder by such Section 4 Person, unless such settlement, compromise or consent (x) includes an unconditional release of such Section 4 Person from all liability on claims that are the subject matter of such action, suit or proceeding 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 Section 4 Person. This indemnity agreement will be in addition to any liability, which the Company might otherwise have.
(B) Each Section 4 Person agrees severally and not jointly to indemnify and hold harmless the Company, each of the Company’s directors, each of the Company’s officers who have signed the Registration Statement 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, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefor and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon the 1933 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) includes or allegedly includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, but only insofar as any such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by such Section 4 Person specifically for use in the preparation thereof; provided that in no case is such Section 4 Person to be liable with respect to any Prospectusclaims made against the Company or any such director, including officer or controlling person unless the Company or any preliminary prospectus such director, officer or preliminary prospectus supplement, controlling person shall not inure to the benefit of any have notified such Section 4 Person if in writing within a copy reasonable time after the summons or other first legal process giving information of the Prospectus nature of the claim shall have been served upon the Company or any such director, officer or controlling person, but failure to notify such Section 4 Person of any such claim (i) shall not relieve such Section 4 Person from liability under this paragraph unless and to the extent such Section 4 Person did not otherwise learn of such action and such failure results in the forfeiture by such Section 4 Person of substantial rights and defenses and (ii) shall not relieve such Section 4 Person from any liability which it may have to the Company or any such director, officer or controlling person otherwise than on account of the indemnity agreement contained in this paragraph. Such Section 4 Person will be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any such liability, but, if such Section 4 Person elects to assume the defense, such defense shall be conducted by counsel chosen by it. In the event that such Section 4 Person elects to assume the defense of any such suit and retain such counsel, the Company or such director, officer or controlling person, defendant or defendants in the suit, may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) such Section 4 Person shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit include the Company or any such director, officer or controlling person and such Section 4 Person and the Company or such director, officer or controlling person have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to such Section 4 Person, in which case such Section 4 Person shall not be entitled to assume the defense of such suit on behalf of the Company or such director, officer or controlling person, notwithstanding its obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that such Section 4 Person shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings 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 a separate firm of attorneys (and not more than one local counsel) at any time for all of the Company and any such director, officer or controlling person, which firm shall be designated in writing by the Company. Such Section 4 Person shall not be liable to indemnify any person for any settlement of any such claim effected without such Section 4 Person’s prior written consent, which consent shall not be unreasonably withheld. This indemnity agreement will be in addition to any liability which such Section 4 Person might otherwise have.
(C) If the indemnification provided for in this Section 4 is unavailable or insufficient to hold harmless an indemnified party under subsections (A) or (B) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as amended ora 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 on the one hand and the Section 4 Persons on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Section 4 Person on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits of such indemnifying party and indemnified party shall be determined by reference to the relative benefits received by the Company from the initial offering and sale of the Securities, on the one hand, and by a holder from receiving Registrable Securities or Exchange Securities registered under the Securities Act, on the other. The relative fault of the 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 or the Section 4 Persons and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue or alleged untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (C) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (C). Notwithstanding the provisions of this Section 4(C), no Section 4 Person shall be required to contribute any amount in excess of the amount by which the dollar amount of the proceeds received by such Section 4 Person from the sale of any Registrable Securities (after deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages which such Section 4 Person has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Section 4 Persons’ obligations in this subsection (C) to contribute are several in proportion to the principal amount of Registrable Securities registered or underwritten, as the case may be, by them and not joint.
Appears in 1 contract
Indemnification; Contribution. (Aa) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealerregistration of any Registrable Securities under the 1933 Act, the Company agrees to shall indemnify and hold harmless (i) in the Initial Purchaserscase of any registration statement (including any related notification or document incident to such registration statement) filed pursuant to Section 3.01, the seller of any Registrable Securities covered by such registration statement, its directors and officers, each Holderofficer and director of each underwriter, each Participating Broker-Dealer, each other Person who participates as an underwriter (any in the offering or sale of such Person being an "Underwriter") Registrable Securities and each other Person, if any, who controls such seller or any Initial Purchasersuch underwriter, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "Section 4 Persons")Act, against any losses, claims, damages, liabilities or and expenses (including the -15- 18 reasonable cost of investigating fees and defending against any claims therefore and counsel fees expenses incurred in connection therewith as such expenses are incurredwith enforcing the provisions of this Section 3.03(a)), joint or several, to which any such indemnified party may be become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of or are based upon either the 1933 Act, or the 1934 Act, or (x) any other statute or at common law, on the ground untrue statement or alleged ground that untrue statement of any Registration Statement (or material fact contained in any amendment or supplement thereto) pursuant to registration statement under which Exchange Securities or such Registrable Securities were registered under the 1933 Act Act, any preliminary prospectus (unless any such statement is corrected in a subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or any Prospectus summary prospectus included therein (therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or (y) included any omission or allegedly included an untrue statement of material fact or omitted alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless and the Company will reimburse such indemnified parties for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided that the Company shall not be liable in any such case and shall not indemnify any Person to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission was or alleged omission made in reliance uponany such registration statement, and in conformity withpreliminary prospectus, final prospectus, summary prospectus, amendment or supplement or document incorporated by reference based upon written information furnished by such Person to the Company by any such Section 4 Person specifically for use in the preparation thereof; provided that . Such indemnity shall remain in no case full force and effect regardless of any investigation made by or on behalf of such indemnified parties and shall survive the transfer of such securities by such seller. The Company shall agree to provide for contribution relating to such indemnity pursuant to Section 3.03(b) below.
(b) If for any reason the foregoing indemnity and reimbursement is unavailable or is insufficient to hold harmless an indemnified party under Section 3.03(a), then the Company shall contribute to the amount paid or payable by such indemnified party as a result of any loss, claim, damage or liability (as actions or proceedings, whether commenced or threatened, in respect thereof), including, without limitation, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding, in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the Company on the other. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable law, the Company shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative fault but also the relative benefits to the Company and the indemnified party as well as any other relevant equitable considerations. The parties agree that it would not be just and equitable if contributions pursuant to this Section 3.03(b) were to be liable with respect to determined by pro rata allocation or by any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information method of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim shall allocation which does not relieve it from any liability which it may have to such Section 4 Person otherwise than on take account of the indemnity agreement contained equitable considerations referred to in the preceding sentences of this paragraph; and provided, further, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended or3.03(b). Notwithstanding anything in this
Appears in 1 contract
Sources: Stockholders' Agreement (Zilog Inc)
Indemnification; Contribution. (Aa) In Subject to the event terms and conditions of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealerthis Section 13.10, the Company agrees to shall indemnify and hold harmless the Initial Purchasers, (i) each Selling Holder, each Participating Broker-Dealerits Affiliates and any Exempt Transferee, each Person who participates as an including their respective directors, officers, partners, managers, employees, advisers, agents, administrators and successors and assigns with respect to any registration statement filed pursuant to this Agreement, (ii) any underwriter (any such Person being an "Underwriter") and each Personor selling agent selected by the Requesting Holders or other securities professional, if any, which facilitates the disposition of the Registrable Securities with respect to such Registrable Securities and (iii) each person who controls the Selling Holders or Affiliates thereof or such underwriter, selling agent or securities professional, including their respective directors, officers, partners, managers, employees, advisers, agents, administrators and successors and assigns, and any Initial Purchaserunderwriter or selling agent, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Securities Act or and Section 20 of the 1934 Act (collectively, the "Section 4 Persons")Exchange Act, against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating each a “Loss” and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurredcollectively “Losses”), joint or several, to which the Selling Holders or any such persons may be become subject under the Securities Act or otherwise, to the extent that such Losses (or related actions or proceedings) arise out of or are based upon either (A) any untrue statement or alleged untrue statement of a material fact contained in a registration statement, offering circular or other document or any amendments or supplements thereto, in which such Registrable Securities are to be or were included for registration under the 1933 Act, or the 1934 Securities Act, or any other statute or at common law, on the ground omission or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of material fact or omitted omission to state a material fact required to be stated therein or necessary in order to make the statements therein in such registration statement, offering circular or other document, as amended or supplemented, not misleadingmisleading (B) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus if used prior to the effective date of the registration statement, unless any final prospectus (as supplemented, if the Company shall have filed with the Commission any supplement thereto) if used during the period in which the Company is required to keep the registration statement to which such prospectus relates current and otherwise in compliance with Section 10(a) of the Securities Act, or any omission or alleged omission to state a material fact required to be stated or necessary to the make statements in such preliminary prospectus or final prospectus, in the light of the circumstances under which such statements were made, not misleading or (C) any material violation or alleged material violation of the Securities Act, the Exchange Act, the rules and regulations as promulgated of the Securities Act and the Exchange Act, and state securities laws; provided, however, that the Company shall not be liable to any Person and shall have no obligation to provide any indemnification hereunder to the extent any such Losses (or actions or proceedings in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement or omission was or alleged omission made in such registration statement, offering circular or other document prospectus, as the case may be, in reliance upon, upon and in conformity with, with written information furnished to the Company by a Person seeking such indemnification or on such Person’s behalf specifically for inclusion in such document. The indemnity provided in this Section 13.10 shall remain in full force and effect regardless of any investigation made by or on behalf of the Selling Holders or any such other persons and shall survive the Transfer of the Registrable Securities by the Selling Holders or any such other persons. Notwithstanding anything provided herein to the contrary, (i) the Company shall not be liable in any such case to the extent that any such losses, claims, damages, liabilities or expenses arise out of or are based upon an untrue statement or omission made in any preliminary prospectus if (x) such Selling Holder or underwriter failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities, (y) the prospectus would have completely corrected such untrue statement or omission and (z) the Company delivered a copy of such prospectus to such Selling Holder or underwriter prior to such written confirmation of sale; and (ii) the Company shall not be liable in any such case to the extent that any such losses, claims, damages, liabilities or expenses arise out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission in the prospectus, if such untrue statement, omission or alleged omission is completely corrected in an amendment or supplement to the prospectus and if, having previously been furnished by or on behalf of the Company with copies of the prospectus as so amended or supplemented, such Selling Holder or underwriter thereafter sells Registrable Securities pursuant to the Registration Statement and fails to deliver such prospectus as so amended or supplemented, prior to or concurrently with the sale of a Registrable Security to the Person asserting such damages who purchased such Registrable Security from such Selling Holder or underwriter after such Selling Holder’s or underwriter’s receipt of such prospectus as so amended or supplemented by or on behalf of the Company.
(b) Each Selling Holder shall severally, and not jointly, indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 4 13.10 hereof) the Company, each director, officer and employee of the Company and each other person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, the Company’s investment advisers and agents, and each of their respective heirs, executors, administrators and successors and assigns, against any Losses to which such Person may become subject under the Securities Act or otherwise, to the extent that such Losses (or related actions or proceedings) arise out of or are based upon any untrue statement or alleged untrue statement in or omission or alleged omission from any registration statement filed by the Company pursuant to this Agreement, any prospectus included in such registration statement, any offering circular or other document or any amendment or supplement to such registration statement, prospectus, offering circular or other document, as the case may be, of a material fact if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company or any of its representatives by such Selling Holder or such other Persons, if any, who control the Selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or on the Selling Holder’s behalf, specifically for use inclusion in such registration statement, prospectus, offering circular or other document, as the preparation thereofcase may be; provided provided, such Selling Holder’s aggregate liability under this Agreement shall be limited to an amount equal to the net proceeds (after deducting the underwriters’ discount and the expenses incurred in connection with the applicable offering) received by the Selling Holder from its sale of securities effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any Action involving a claim referred to in Section 13.10(a) and 13.10(b), such indemnified party shall, if indemnification is sought against an indemnifying party, give written notice to the indemnifying party of the commencement of such Action; provided, however, that in no the failure of any indemnified party to give said notice shall not relieve the indemnifying party of its obligations under Section 13.10(a) and 13.10(b), as the case may be, except to the extent that the indemnifying party is the Company to be liable with respect to any claims made actually and materially prejudiced by such failure. In case an Action is brought against any Section 4 Person unless indemnified party, and such Section 4 Person indemnified party notifies an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice, 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). Notwithstanding the foregoing, the indemnified party shall have notified the Company right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying party, (ii) the indemnifying party shall not have employed counsel (reasonably satisfactory to the indemnified party) to take charge of the defense of such Action, within a reasonable time after the summons or other first legal process giving information notice of the nature commencement thereof or (iii) such indemnified party reasonably shall have concluded that there may be defenses available to it which are different from or additional to those available to the indemnifying party or that a conflict of interest exists between the indemnified party and the indemnifying party. If any of the claim events specified in clauses (i), (ii) or (iii) of the preceding sentence shall have been served upon such occurred or otherwise shall be applicable, then the fees and expenses of one counsel (or firm of counsel) for the indemnified party shall be borne by the indemnifying party. Anything in this Section 4 Person13.10(c) to the contrary notwithstanding, an indemnifying party shall not be liable for the settlement of any action effected without its prior written consent (which consent shall not unreasonably be withheld or delayed), but failure if settled with the prior written consent of the indemnifying party, or if there be a final judgment adverse to notify the Company indemnified party, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as a term thereof the unconditional release of the indemnified party from all liability in respect of such claim or litigation. Each indemnified party shall not relieve it from furnish such information regarding itself or the claims in question as the indemnifying party may reasonably request in writing and as shall be required in connection with the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 13.10 is unavailable or insufficient to hold harmless an indemnified party in respect of any liability Losses, 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 Losses which it may have amount shall include, without limitation, the legal fees and other expenses incurred by such indemnified party in connection with the investigation and defense in such proportion as appropriate to reflect the relative fault of the Company, on the one hand, and the indemnified parties to be indemnified pursuant to this Section 13.10, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or mitigate the damage in respect of or prevent any untrue statement or omission or alleged untrue statement or omission giving rise to such indemnification obligation. The Company and the Members agree that it would not be just and equitable if contributions pursuant to this Section 4 Person otherwise than on 13.10 were determined by pro rata allocation or by any other method of allocation which did not take account of the indemnity agreement contained equitable considerations referred to above. 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 is not guilty of such fraudulent misrepresentation.
(e) Periodic payments of amounts required to be paid pursuant to this Section 13.10 shall be made during the course of the investigation or defense, as and when reasonably itemized bills therefor are delivered to the indemnifying party in respect of any particular Loss as incurred.
(f) The remedies provided in this paragraph; Section 13.10 are not exclusive and provided, further, should not limit any right or remedies that the foregoing indemnity with respect may otherwise be available to any Prospectus, including any preliminary prospectus an indemnified party at law or preliminary prospectus supplement, shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended orin equity.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Ensource Energy Income Fund LP)
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the The Company agrees to indemnify and hold harmless the Initial PurchasersDealer-Managers, their respective affiliates, each Holder, each Participating Broker-Dealer, Dealer and each Person who participates as an underwriter (any such Person being an "“Underwriter"”) and each Person, if any, who controls any Initial PurchaserDealer-Manager, Holder, Participating Broker-Dealer or Underwriter underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "“Section 4 Persons"”), against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included includes or allegedly included includes an untrue statement of material fact or omitted omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by any such Section 4 Person specifically for use in the preparation thereof; provided that in no case is the Company to be liable with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim (i) shall not relieve it the Company from liability under this paragraph unless and to the extent the Company did not otherwise learn of such claim and such failure results in the forfeiture by the Company of substantial rights and defenses and (ii) shall not relieve the Company from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph. The Company will be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any such liability, but, if the Company elects to assume the defense, such defense shall be conducted by counsel chosen by it; and provided, furtherhowever, that such counsel shall be reasonably satisfactory to such Section 4 Persons. In the event that the Company elects to assume the defense of any such suit and retains such counsel, each Section 4 Person may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) the Company shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit include the Section 4 Person and the Section 4 Persons and the Company have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to the Company, in which case the Company shall not be entitled to assume the defense of such suit on behalf of such Section 4 Person, notwithstanding its obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that the foregoing Company shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings 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 (and not more than one local counsel) at any time for all such Section 4 Persons, which firm shall be designated in writing by the Dealer-Managers. The Company shall not be liable to indemnify any Person for any settlement of any such claim effected without the Company’s prior written consent, which consent shall not be unreasonably withheld. The Company shall not, without the prior written consent of the Section 4 Person, 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 Section 4 Person is or could have been a party and indemnity was or could have been sought hereunder by such Section 4 Person, unless such settlement, compromise or consent (x) includes an unconditional release of such Section 4 Person from all liability on claims that are the subject matter of such action, suit or proceeding 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 Section 4 Person. This indemnity agreement will be in addition to any liability, which the Company might otherwise have.
(B) Each Section 4 Person agrees severally and not jointly to indemnify and hold harmless the Company, each of the Company’s directors, each of the Company’s officers who have signed the Registration Statement 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, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefor and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon the 1933 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) includes or allegedly includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, but only insofar as any such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by such Section 4 Person specifically for use in the preparation thereof; provided that in no case is such Section 4 Person to be liable with respect to any Prospectusclaims made against the Company or any such director, including officer or controlling person unless the Company or any preliminary prospectus such director, officer or preliminary prospectus supplement, controlling person shall not inure to the benefit of any have notified such Section 4 Person if in writing within a copy reasonable time after the summons or other first legal process giving information of the Prospectus nature of the claim shall have been served upon the Company or any such director, officer or controlling person, but failure to notify such Section 4 Person of any such claim (i) shall not relieve such Section 4 Person from liability under this paragraph unless and to the extent such Section 4 Person did not otherwise learn of such action and such failure results in the forfeiture by such Section 4 Person of substantial rights and defenses and (ii) shall not relieve such Section 4 Person from any liability which it may have to the Company or any such director, officer or controlling person otherwise than on account of the indemnity agreement contained in this paragraph. Such Section 4 Person will be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any such liability, but, if such Section 4 Person elects to assume the defense, such defense shall be conducted by counsel chosen by it. In the event that such Section 4 Person elects to assume the defense of any such suit and retain such counsel, the Company or such director, officer or controlling person, defendant or defendants in the suit, may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) such Section 4 Person shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit include the Company or any such director, officer or controlling person and such Section 4 Person and the Company or such director, officer or controlling person have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to such Section 4 Person, in which case such Section 4 Person shall not be entitled to assume the defense of such suit on behalf of the Company or such director, officer or controlling person, notwithstanding its obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that such Section 4 Person shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings 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 a separate firm of attorneys (and not more than one local counsel) at any time for all of the Company and any such director, officer or controlling person, which firm shall be designated in writing by the Company. Such Section 4 Person shall not be liable to indemnify any person for any settlement of any such claim effected without such Section 4 Person’s prior written consent, which consent shall not be unreasonably withheld. This indemnity agreement will be in addition to any liability which such Section 4 Person might otherwise have.
(C) If the indemnification provided for in this Section 4 is unavailable or insufficient to hold harmless an indemnified party under subsections (A) or (B) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as amended ora 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 on the one hand and the Section 4 Persons on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Section 4 Person on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits of such indemnifying party and indemnified party shall be determined by reference to the relative benefits received by the Company from the initial offering and sale of the Securities, on the one hand, and by a holder from receiving Registrable Securities or Exchange Securities registered under the Securities Act, on the other. The relative fault of the 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 or the Section 4 Persons and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue or alleged untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (C) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (C). Notwithstanding the provisions of this Section 4(C), no Section 4 Person shall be required to contribute any amount in excess of the amount by which the dollar amount of the proceeds received by such Section 4 Person from the sale of any Registrable Securities (after deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages which such Section 4 Person has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Section 4 Persons’ obligations in this subsection (C) to contribute are several in proportion to the principal amount of Registrable Securities registered or underwritten, as the case may be, by them and not joint.
Appears in 1 contract
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an "Underwriter") and each Person, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "Section 4 Persons"), against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurredtherewith), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by any such Section 4 Person specifically for use in the preparation thereof; provided PROVIDED that in no case is the Company to be liable with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim shall not relieve it from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph; and providedPROVIDED, furtherFURTHER, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended or supplemented) at the time of sale had not been sent or given by or on behalf of such Section 4 Person to the Person asserting any such losses, claims, damages or liabilities concurrently with or prior to delivery of the written confirmation of the sale of Exchange Securities or Registrable Securities, as the case may be, to such Person and the untrue statement or omission of a material fact contained in any such Prospectus was corrected in the Prospectus (as amended or supplemented). The Company will be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any such liability, but, if the Company elects to assume the defense, such defense shall be conducted by counsel chosen by it.
Appears in 1 contract
Sources: Registration Rights Agreement (Shurgard Storage Centers Inc)
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an "Underwriter") and each Person, if any, who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "Section 4 Persons"), against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by any such Section 4 Person specifically for use in the preparation thereof; provided that in no case is the Company to be liable with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim shall not relieve it from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph; and provided, further, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended or18
Appears in 1 contract
Sources: Registration Rights Agreement (Centerpoint Energy Houston Electric LLC)
Indemnification; Contribution. (Aa) In the event of a Shelf Registration Statement or Incident to any registration statement referred to in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealerthis Article II, the Company agrees to will indemnify and hold harmless the Initial Purchaserseach underwriter, each Holder, each Participating Broker-Dealer, each Person Holder who participates as an underwriter (offers or sells any such Person being an Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any of them (a "UnderwriterSelling Holder") ), and each Person, if any, person who controls any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter of them within the meaning of Section 15 of the 1933 Securities Act or Section 20 of the 1934 Exchange Act (collectivelya "Controlling Person")), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the "Section 4 Persons"Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading in light of the circumstances under which such statements were made, or (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company will not be obligated to indemnify any party to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by or on behalf of such party expressly for use in such registration statement.
(b) Each Selling Holder will indemnify and hold harmless the Company (including its directors, officers, employees and agents), each underwriter and each other Holder (including its partners (including partners of partners and stockholders of such partners), and directors, officers, employees and agents of any of them, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise with respect to any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement or any omission or alleged omission to state in such information a material fact required to be stated in it or necessary to make the statements in it not misleading in light of the circumstances under which such statements were made. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 2.4(b) exceed the net proceeds received by such Selling Holder from its sale of Registrable Securities under such registration statement.
(c) If the indemnification provided for in Section 2.4(a) or (b) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 2.4, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities in such proportion as is appropriate to reflect (including i) the reasonable cost relative benefits received by the Company, the other Selling Holders and the underwriters from the offering of investigating the Registrable Securities, (ii) the relative fault of the Company, the other Selling Holders and defending against any claims therefore and counsel fees incurred the underwriters in connection therewith as with the statements or omissions which resulted in such losses, claims, damages, expenses are incurred)or liabilities, joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or and (iii) any other statute or at common lawrelevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the ground cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company, the Selling Holders and the underwriters shall be determined by reference to, among other things, whether the untrue or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included or allegedly included an untrue statement of a material fact or omitted the omission or alleged omission to state a material fact required relates to be stated therein information supplied by the Company, the Selling Holders or necessary in order the underwriters and the parties' relative intent, knowledge, access to make the statements therein not misleading, unless information and opportunity to correct or prevent such statement or omission was made in reliance uponomission. The Company, the Selling Holders, and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 2.4(c) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in conformity withthe immediately preceding paragraph. In no event, written information furnished however, shall a Selling Holder be required to contribute any amount under this Section 2.4(c) in excess of the net proceeds received by such Selling Holder from its sale of Registrable Securities under such registration statement. No person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
(d) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 2.4 shall 11 be deemed to include, subject to the Company limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The indemnification obligations set forth in this Section 4 Person specifically 2.4 shall not apply to amounts paid by the indemnified party in any settlement that is effected without the consent of the party from whom indemnification sought, which consent shall not be unreasonably withheld. The indemnification and contribution provided for use in this Section 2.4 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the preparation thereof; provided that in no case is the Company to be liable with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company defense of any such claim or litigation, shall, except with the consent of such indemnified party, which consent shall not relieve it from be unreasonably withheld, consent to entry of any liability judgment or enter into any settlement which it may have does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Section 4 Person otherwise than indemnified party of a release from all liability in respect of such claim or litigation.
(e) Notwithstanding the foregoing, to the extent that the provisions on account of the indemnity agreement indemnification and contribution contained in an underwriting agreement entered into in connection with an underwritten public offering are in conflict with the provisions of this paragraph; and providedAgreement, further, that the foregoing indemnity with respect to any Prospectus, including any preliminary prospectus or preliminary prospectus supplement, provisions in such underwriting agreement shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended orcontrol.
Appears in 1 contract
Indemnification; Contribution. (A) In the event of a Shelf Registration Statement or in connection with any prospectus delivery pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or Participating Broker-Dealer, the The Company agrees to indemnify and hold harmless the Initial Purchasers, their respective affiliates, each Holder, each Participating Broker-Dealer, Broker- Dealer and each Person who participates as an underwriter (any such Person being an "“Underwriter"”) and each Person, if any, who controls any Initial PurchaserPurchasers, Holder, Participating Broker-Dealer or Underwriter underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "“Section 4 Persons"”), against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith as such expenses are incurred), joint or several, which may be based upon either the 1933 Act, or the 1934 Act, or any other statute or at common law, on the ground or alleged ground that any Registration Statement (or any amendment or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act or any Prospectus included therein (or any amendment or supplement thereto) included includes or allegedly included includes an untrue statement of material fact or omitted omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, unless such statement or omission was made in reliance upon, and in conformity with, written information furnished to the Company by any such Section 4 Person specifically for use in the preparation thereof; provided that in no case is the Company to be liable with respect to any claims made against any Section 4 Person unless such Section 4 Person shall have notified the Company in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Section 4 Person, but failure to notify the Company of any such claim (i) shall not relieve it the Company from liability under this paragraph unless and to the extent the Company did not otherwise learn of such claim and such failure results in the forfeiture by the Company of substantial rights and defenses and (ii) shall not relieve the Company from any liability which it may have to such Section 4 Person otherwise than on account of the indemnity agreement contained in this paragraph. The Company will be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any such liability, but, if the Company elects to assume the defense, such defense shall be conducted by counsel chosen by it; and provided, furtherhowever, that such counsel shall be reasonably satisfactory to such Section 4 Persons. In the event that the Company elects to assume the defense of any such suit and retains such counsel, each Section 4 Person may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) the Company shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit include the Section 4 Person and the Section 4 Persons and the Company have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to the Company, in which case the Company shall not be entitled to assume the defense of such suit on behalf of such Section 4 Person, notwithstanding its obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that the foregoing indemnity Company shall not, in connection with respect to any Prospectusone such suit or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, including be liable for the reasonable fees and expenses of more than one separate firm of attorneys (and not more than one local counsel) at any preliminary prospectus or preliminary prospectus supplementtime for all such Section 4 Persons, which firm shall be designated in writing by the Initial Purchasers. The Company shall not inure to the benefit of any Section 4 Person if a copy of the Prospectus (as amended orbe
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