Indemnification; Contribution. (a) The Company shall indemnify and hold harmless the Foundation, its officers and directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement. (b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement. (c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party. (d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d). (e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 3 contracts
Sources: Settlement Agreement (Rightchoice Managed Care Inc), Settlement Agreement (Rightchoice Managed Care Inc), Registration Rights Agreement (Rightchoice Managed Care Inc /De)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless harmless, to the Foundationfullest extent permitted by law, its officers each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and any agent or investment adviser thereof affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon upon: (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as the same such statements or omissions arise out of or are based upon, upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to the Foundation such Holder furnished in writing to the Company by the Foundation such Holder or its counsel expressly for use therein. In , (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with an Underwritten Offeringany such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such 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 by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party.
(b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the underwriters thereoffullest extent permitted by law, their officersthe Company, directors each Person, if any, who participates as an underwriter in any offering and agents sale of Registrable Securities and each Person Person, if any, who controls the Company or such underwriters (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof their respective directors, trustees, officers, partners, agents, employees and affiliates, against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) Losses incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation such Holder furnished in writing to the Company or any underwriter by the Foundation such Holder or its counsel specifically for inclusion use therein. Notwithstanding ; provided, however, that no Holder shall be required to indemnify the foregoing provisions of Company or any other indemnified party under this Section 13(b), the Foundation shall not be liable 12(b) with respect to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 amount in excess of the Securities Act or Section 20 amount of the Exchange Act), or any agent or investment advisor thereof, if total net proceeds received by such Holder from sales of the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion Registrable Securities of such untrue statement or omission in the Holder under such Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to unless in the reasonable satisfaction judgment of any indemnified party, based on the indemnified party its ability opinion of counsel, a conflict of interest is likely to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both exist between the indemnifying party and such indemnified party and any other of such indemnified party shall have reasonably concluded that there may be legal defenses available parties with respect to it such claim, in which are different from or additional to those available to event the indemnifying party which, if the indemnifying party and such indemnified party were to shall not be represented by the same counsel, could result in a conflict of interest liable for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of (i) more than one counsel or firm for all Holders of counsel (plus one local or regulatory counsel or firm of counsel) Registrable Securities who are indemnified parties, selected by the Holders of a majority in interest Majority of the Registrable Securities who are indemnified parties (which selection shall be borne by reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party and who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel retained for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be paid reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified partiesparty of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or enter entry into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 12 is unavailable to an indemnified party hereunder in respect of to any losses, claims, damages, liabilities or expenses referred to thereinLosses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expensesLosses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof12(c), any legal and or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 1112, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in Section 11(a12(a) or (b) hereof12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d12(d).
(e) The provisions of this Section 11 12 shall be in addition to any liability which any indemnifying party may have to any other indemnified party and shall survive any the termination of this Agreement. .
(f) The indemnification provided and contribution required by this Section 11 12 shall remain in full force and effect irrespective be made by periodic payments of the amount thereof during the course of any investigation made by action, suit, proceeding or on behalf of an indemnified partyinvestigation, so long as such indemnified party is not guilty of acting in a fraudulent, reckless and when invoices are received or grossly negligent mannerLosses are incurred.
Appears in 3 contracts
Sources: Registration Rights Agreement (Itc Deltacom Inc), Registration Rights Agreement (Itc Deltacom Inc), Registration Rights Agreement (Itc Deltacom Inc)
Indemnification; Contribution. (a) The Company Amicus shall indemnify and hold harmless each Holder (including the Foundationemployees, its agents, representatives, officers and directors, directors of each Purchaser and its Affiliates) (each a “Purchaser Indemnitee”) from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of of, directly or based upon (i) indirectly, any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Statement or any Prospectus or preliminary Prospectusother document filed in accordance with this Section 7, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading; provided, except however, that Amicus will not be liable in each any such case insofar as to the same extent that any such Damages arise out of of, directly or are based uponindirectly, any such untrue statement or omission omission, made in reliance on upon and in conformity with written information with respect furnished in writing to the Foundation furnished to the Company Amicus by the Foundation or its counsel such Holder specifically and expressly for use therein. In connection with an Underwritten Offering, the Company inclusion in such document.
(b) Each Holder shall indemnify the underwriters thereofand hold harmless Amicus, their and its respective directors, officers, directors and agents employees and each Person who controls such underwriters Amicus (within the meaning of Section 15 of the Securities Act or Section 20 of and the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, from and against any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of of, directly or based upon (i) indirectly, any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Statement or any Prospectus or preliminary Prospectusother document filed in accordance with this Section 7, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any if such untrue statement or omission is was made in reliance on upon and in conformity with any information with respect concerning such Holder furnished in writing to the Foundation furnished to the Company or any underwriter Amicus by the Foundation or its counsel such Holder specifically for inclusion therein. Notwithstanding use in the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion preparation of such untrue statement or omission in the Registration Statementdocument.
(c) Any Each Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by such indemnified party the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may the Indemnified Party intends to claim indemnification or contribution pursuant to this Section 11 (provided the Transaction Documents; provided, however, that the failure to give such notification so notify the Indemnifying Party shall not affect relieve the obligations Indemnifying Party of any liability that it may have to the indemnifying party pursuant to this Section 11 except Indemnified Party hereunder unless, and only to the extent that, such failure results in the indemnifying party shall have been actually prejudiced as a result Indemnifying Party’s forfeiture of such failure)substantive rights or defenses. In case If notice of commencement of any such action shall be brought against any indemnified party and it shall notify is given to the indemnifying party of the commencement thereofIndemnifying Party as above provided, the indemnifying party Indemnifying Party shall be entitled to participate therein in and, to the extent that it shall may wish, jointly with any other indemnifying party Indemnifying Party similarly notified, to assume the defense thereofof such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party (who Indemnified Party. The Indemnified Party shall not, except with have the consent of the indemnified party, be right to employ separate counsel to the indemnifying party), in any such action and after notice from the indemnifying party to such indemnified party of its election so to assume participate in the defense thereof, but the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal fees and expenses of other such counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof (other than reasonable costs of investigation. Notwithstanding ) shall be paid by the foregoing, if Indemnified Party unless (i) the indemnifying party shall not have employed counsel reasonably satisfactory Indemnifying Party agrees to such indemnified party pay the same, (ii) the Indemnifying Party fails to take charge of assume the defense of such action within a with counsel reasonably satisfactory to the Indemnified Party in its reasonable time after notice of commencement of judgment or (iii) the named parties to any such action (so long as such failure to employ counsel is not the result of an unreasonable determination including any impleaded parties) have been advised by such indemnified party counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction would be inappropriate under applicable standards of the indemnified party its ability to finance such defense, professional conduct or (iiy) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party whichIndemnifying Party. In either of such cases, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party Indemnifying Party shall not have the right to employ separate counsel, in which case assume the fees and expenses defense of one counsel or firm such action on behalf of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties such Indemnified Party. No Indemnifying Party shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into liable for any settlement entered into without the its written consent (which consent, other than in the case of an actionwhere the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), suit, claim or proceeding exclusively seeking monetary relief, which consent shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 7.5 from the Indemnifying Party pursuant to applicable law is unavailable to an indemnified party Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party and indemnified party Indemnified Party in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault faults of such indemnifying party Indemnifying Party and indemnified party Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' ’ relative intent, knowledgeKnowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(cSections 7.5(a), (b) hereofand (c), any legal and or other fees and fees, charges or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d7.5(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No Person guilty of an intentional or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)Person.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 3 contracts
Sources: Note and Warrant Purchase Agreement, Note and Warrant Purchase Agreement (Amicus Therapeutics Inc), Note and Warrant Purchase Agreement (Amicus Therapeutics Inc)
Indemnification; Contribution. (a) The Company Amicus shall indemnify and hold harmless each Holder (including the Foundationemployees, its agents, representatives, officers and directors, directors of each Purchaser and its Affiliates) (each a “Purchaser Indemnitee”) from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue untrue, or alleged untrue allegedly untrue, statement of a material fact contained in any Registration Statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment notification or supplement to any offering circular prepared by Amicus in connection with the registration and/or offering of the foregoing, Registrable Securities (as amended or (iisupplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of are caused by or are based upon, contained in any information concerning such untrue statement or omission made Holder furnished in reliance on writing to Amicus by such Holder specifically and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company inclusion in such document.
(b) Each Holder shall indemnify the underwriters thereofand hold harmless Amicus, their and its respective directors, officers, directors and agents employees and each Person who controls such underwriters Amicus (within the meaning of Section 15 of the Securities Act or Section 20 of and the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, from and against any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue untrue, or alleged untrue allegedly untrue, statement of a material fact contained in any Registration Statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment notification or supplement to any offering circular prepared by Amicus in connection with the registration and/or offering of the foregoing, Registrable Securities (as amended or (iisupplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any if such untrue statement or omission is was made in reliance on upon and in conformity with any information with respect concerning such Holder furnished in writing to Amicus by such Holder specifically and expressly for use in the Foundation furnished to the Company or preparation of such document; provided, however, that in no event shall any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of indemnity under this Section 13(b), 6.5(b) be greater in amount than the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 aggregate dollar amount of the Securities Act or Section 20 proceeds received by all of the Exchange Act), or any agent or investment advisor thereof, if Purchasers upon the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion sale of such untrue statement or omission in the Registration StatementRegistrable Securities.
(c) Any Each Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by such indemnified party the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may the Indemnified Party intends to claim indemnification or contribution pursuant to this Section 11 (provided the Transaction Documents; provided, however, that the failure to give such notification so notify the Indemnifying Party shall not affect relieve the obligations Indemnifying Party of any liability that it may have to the indemnifying party pursuant to this Section 11 except Indemnified Party hereunder unless, and only to the extent that, such failure results in the indemnifying party shall have been actually prejudiced as a result Indemnifying Party’s forfeiture of such failure)substantive rights or defenses. In case If notice of commencement of any such action shall be brought against any indemnified party and it shall notify is given to the indemnifying party of the commencement thereofIndemnifying Party as above provided, the indemnifying party Indemnifying Party shall be entitled to participate therein in and, to the extent that it shall may wish, jointly with any other indemnifying party Indemnifying Party similarly notified, to assume the defense thereofof such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party (who Indemnified Party. The Indemnified Party shall not, except with have the consent of the indemnified party, be right to employ separate counsel to the indemnifying party), in any such action and after notice from the indemnifying party to such indemnified party of its election so to assume participate in the defense thereof, but the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal fees and expenses of other such counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof (other than reasonable costs of investigation. Notwithstanding ) shall be paid by the foregoing, if Indemnified Party unless (i) the indemnifying party shall not have employed counsel reasonably satisfactory Indemnifying Party agrees to such indemnified party pay the same, (ii) the Indemnifying Party fails to take charge of assume the defense of such action within a with counsel reasonably satisfactory to the Indemnified Party in its reasonable time after notice of commencement of judgment or (iii) the named parties to any such action (so long as such failure to employ counsel is not the result of an unreasonable determination including any impleaded parties) have been advised by such indemnified party counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction would be inappropriate under applicable standards of the indemnified party its ability to finance such defense, professional conduct or (iiy) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party whichIndemnifying Party. In either of such cases, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party Indemnifying Party shall not have the right to employ separate counsel, in which case assume the fees and expenses defense of one counsel or firm such action on behalf of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties such Indemnified Party. No Indemnifying Party shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into liable for any settlement entered into without the its written consent (which consent, other than in the case of an actionwhere the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), suit, claim or proceeding exclusively seeking monetary relief, which consent shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 6.5 from the Indemnifying Party pursuant to applicable law is unavailable to an indemnified party Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party and indemnified party Indemnified Party in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault faults of such indemnifying party Indemnifying Party and indemnified party Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' ’ relative intent, knowledgeKnowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(cSections 6.5(a), (b) hereofand (c), any legal and or other fees and fees, charges or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d6.5(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No Person guilty of an intentional or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)Person.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Amicus Therapeutics, Inc.), Securities Purchase Agreement (Amicus Therapeutics, Inc.), Securities Purchase Agreement (Amicus Therapeutics, Inc.)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the Foundationeach seller of Registrable Securities covered by a Registration Statement filed pursuant to this Agreement, its officers and such seller's partners, directors, officers, employees and any agent or investment adviser thereof Person who controls such seller under the Securities Act (each, an "Indemnitee") from and against any and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statementprepricing prospectus, any Prospectus registration statement or preliminary Prospectus, prospectus or in any amendment or supplement to any of the foregoingthereto, or (ii) arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise such losses, claims, damages, liabilities or expenses rise out of or are based upon, upon any such untrue statement or omission or alleged untrue statement or omission which has been made therein or omitted therefrom in reliance on upon and in conformity with the information with respect relating to the Foundation a participating Holder furnished in writing to the Company by the Foundation or its counsel on behalf of a participating Holder expressly for use thereinin connection therewith. In The foregoing indemnity agreement shall be in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against the Company, such Indemnitee shall promptly notify the Company, and the Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (x) the Company has agreed in writing to pay such fees and expenses, (y) the Company has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and the Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that the Company shall, in connection with an Underwritten Offeringany one such action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be reimbursed as they are incurred. The Company shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent, but if settled with such written consent, or if them be a final judgment for the plaintiff in any such action, suit or proceeding, the Company shall agrees to indemnify and hold harmless such Indemnitee, to the underwriters thereofextent provided in the preceding paragraph, their officersfrom and against any loss, directors claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each of the participating Holders, severally and agents not jointly, agree to indemnify and each Person hold harmless the Company, its directors, its officers who sign the registration statement, and any person who controls such underwriters (the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) , to the same extent as provided above the foregoing indemnity from the Company to an Indemnitee, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable information relating to the Foundation, any Person who participates as an underwriter such Holder furnished in the offering writing by or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests Holder expressly for use in the Registration Statement relating to such registration statement, prospectus or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusprepricing prospectus, or any amendment or supplement to thereto. If any of the foregoingaction, suit or (ii) any omission or alleged omission to state therein a material fact required to proceeding shall be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to brought against the Company, any underwriter, each such parties' officers or of its directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)officer, or any agent such controlling person based on the registration statement, prospectus or investment advisor thereofany prepricing prospectus, if the Foundation had provided information curing or any untrue statement amendment or omission supplement thereto, and in time reasonably sufficient to prevent the inclusion respect of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of which indemnity may be sought against any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution Holder pursuant to this Section 11 9(c), such Holder shall have the rights and duties given to the Company by Section 9(b) hereof (provided except that failure to give if the Company shall have assumed the defense thereof such notification Holder shall not affect the obligations of the indemnifying party pursuant be required to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party do so, but may employ separate counsel therein and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume in the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by at the indemnifying party Holder's expense), and the fees Company, its directors, any such officer, and expenses of all other counsel retained any such controlling person shall have the rights and duties given to an Indemnitee by the indemnified parties Section 9(b) hereof. The foregoing indemnity agreement shall be paid by in addition to any liability which the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partyparticipating Holders may otherwise have.
(d) If the indemnification from the indemnifying party provided for in this Section 11 9 is unavailable to an indemnified party hereunder under paragraphs (a) or (c) hereof in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company and indemnified party of the participating Holders in connection with the actions which statements or omissions that resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company on the one hand and indemnified party a participating Holder on the other hand shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission -omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company on the one hand or by such indemnifying party or indemnified party, participating Holder on the other hand and the parties' relative intent, knowledge, access to or information and opportunity to correct or prevent such actionstatement or omission.
(e) The Company and the participating Holders agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by a pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d) hereof. The amount paid or payable by a an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to above in Section 9(d) hereof shall be deemed to include, subject to the limitations set forth in Section 11(c) hereofabove, any legal and or other fees and expenses reasonably incurred by such indemnified party in connection with investigating any investigation claim or defending any such action, suit or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d)9, no underwriter participating Holder 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 proceeds to the public were offered to the public such participating Holder exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation participating Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If .
(f) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or 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 action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified parry is entitled to indemnification is available or contribution under this Section 11, 9 shall be paid by the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party as such losses, claims, damages, liabilities or any other equitable consideration provided for expenses are incurred. The indemnity and contribution agreements contained in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 9 shall remain operative and in full force and effect irrespective effect, regardless of (i) any investigation made by or on behalf of an indemnified partyIndemnitee, so long as such indemnified party is not guilty the Company, its directors or officers, or any person controlling the Company, and (ii) any termination of acting in a fraudulent, reckless or grossly negligent mannerthis Agreement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Corporate Office Properties Trust), Registration Rights Agreement (Corporate Office Properties Trust), Registration Rights Agreement (Baltimore Gas & Electric Co)
Indemnification; Contribution. (a) The To the fullest extent permitted by applicable law, the Company shall shall, and it hereby agrees to, indemnify and hold harmless Sponsor Stockholder, each underwriter and the Foundationequityholders, its controlling persons, directors, officers and directorsemployees of each of the foregoing in any offering or sale of the Registrable Securities, and including pursuant to Section 6.01, Section 6.02 or Section 6.05, against any agent or investment adviser thereof against all losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' actual and documented out-of-pocket fees and expensesof legal counsel reasonably incurred) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of the Company as provided herein), or threatened actionactions or proceedings in respect thereof, suitarise out of, proceeding relate to, are in connection with, or investigation arising out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus or preliminary Prospectuscontained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of, relate to, are in connection with, or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse periodically each such indemnified Person for any actual and documented out-of-pocket legal or other actual and documented out-of-pocket expenses reasonably incurred by it in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of, relate to, are in connection with, or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, or preliminary or final Prospectus, or amendment or supplement thereto, in reliance upon written information furnished to the Company (x) by Sponsor Stockholder or any Representative of Sponsor Stockholder, expressly for use therein, it being understood and agreed that the only such information furnished by Sponsor Stockholder or any Representative of Sponsor Stockholder consists of the foregoinginformation described as such in Section 6.13(b) or (y) by or on behalf of any underwriter expressly for use therein.
(b) To the fullest extent permitted by applicable law, Sponsor Stockholder shall, and hereby agrees to, (i) indemnify and hold harmless the Company, its directors, officers, employees and its other equityholders and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Securities by it against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or (ii) actions or proceedings in respect thereof, arise out of, relate to, are in connection with, or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of, relate to, are in connection with, or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information regarding Sponsor Stockholder furnished to the preliminary Prospectus if Company by Sponsor Stockholder or any Representative of Sponsor Stockholder expressly for use therein, it being understood and agreed that the Foundationonly such information furnished by Sponsor Stockholder or any Representative of Sponsor Stockholder consists of the number of shares of Common Stock owned by Sponsor Stockholder, the number of Registrable Securities proposed to be sold by Sponsor Stockholder, the name and address of Sponsor Stockholder and the method of distribution proposed by Sponsor Stockholder, and (ii) reimburse the Company for any actual and documented out-of-pocket legal or other Person on behalf of out-of-pocket expenses reasonably incurred by the FoundationCompany in connection with investigating or defending any such Claim; provided, failed to send however, that in no event shall any indemnity or deliver a copy of a final Prospectus reimbursement by Sponsor Stockholder under this Section 6.13(b) exceed an amount equal to the Person asserting the claim prior to the written confirmation net proceeds received by Sponsor Stockholder in respect of the sale of the Registrable Securities giving rise to such Person and such statement indemnification or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementreimbursement obligation.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to Sponsor Stockholder and the indemnifying party after the receipt by such indemnified party of Company agree that if, for any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofreason, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this indemnification provisions contemplated by Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory6.13(a) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (iiSection 6.13(b) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, each Indemnifying Party (as defined below) shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party, on the one hand, and the indemnified party in connection party, on the other hand, with respect to the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsapplicable offering of securities. The relative fault of such indemnifying party Indemnifying Party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party Indemnifying Party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 6.13(c) is not permitted by applicable law, then each Indemnifying Party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the Indemnifying Party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d6.13(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d6.13(c), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 6.14) any damages which actual and documented out-of- pocket legal or other out-of-pocket fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 3 contracts
Sources: Stockholders Agreement (Amazon Holdco Inc.), Stockholders Agreement (Amazon Holdco Inc.), Stockholders Agreement (Amazon Holdco Inc.)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless each Holder of Registrable Securities, the FoundationAffiliates, its officers and directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any agent such Holder within the meaning of either the Securities Act or investment adviser thereof the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any Prospectus amendment thereof or preliminary Prospectussupplement thereto, or any amendment arise out of or supplement to any of are based upon the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a the Disclosure Package, or any preliminary, final or summary Prospectus or a preliminary ProspectusFree Writing Prospectus included in any such Registration Statement, in light of the circumstances then existingunder which they were made) not misleading, except and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act investigating or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for defending any such loss, claim, damage, liability (or action (whether or proceeding not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in respect thereof) any case to the extent that any such loss, claim, damage, liability or expense that arises (i) out of an or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the preliminary Prospectus if the Foundation, Company by or other Person on behalf of the Foundationany such Holder specifically for inclusion therein including, failed to send without limitation, any notice and questionnaire, or deliver a copy (ii) out of a final Prospectus to the Person asserting the claim prior to the written confirmation sales of the sale of the Registrable Securities made during a Suspension Period after notice is given pursuant to such Person and such statement or omission was corrected Section 2(e)(ii) hereof. This indemnity agreement will be in such final Prospectus and addition to any liability which the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementmay otherwise have.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company Each Holder severally (and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and not jointly) agrees to indemnify and hold harmless the CompanyCompany and each of its Affiliates, any underwriterdirectors, each such party's officers employees, members, managers and directors agents and each Person who controls each such party (the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against any agent or investment adviser thereof against and all losses, claims, damagesdamages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any Prospectus amendment thereof or preliminary Prospectussupplement thereto, or any amendment arise out of or supplement to any of are based upon the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a the Disclosure Package, or any preliminary, final or summary Prospectus or a preliminary ProspectusFree Writing Prospectus included in any such Registration Statement, in light of the circumstances then existingunder which they were made) not misleading, to the extent, but only to the extent extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is made contained in reliance on and in conformity with any written information with respect relating to the Foundation such Holder furnished to the Company by or any underwriter by the Foundation or its counsel on behalf of such Holder specifically for inclusion therein. Notwithstanding ; provided, however, that the foregoing provisions of total amount to be indemnified by such Holder pursuant to this Section 13(b), the Foundation 8(b) shall not be liable limited to the Company, any underwriter, each net proceeds (after deducting underwriters’ discounts and commissions) received by such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission Holder in the offering to which such Registration StatementStatement or Prospectus relates.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 8 of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may will, if a claim indemnification or contribution pursuant in respect thereof is to this Section 11 (provided that failure to give such notification shall not affect the obligations of be made against the indemnifying party pursuant to under this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall 8, 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 such action and such failure results in material prejudice to the indemnifying party and 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 participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoingindemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the indemnifying party shall not have employed use of counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination chosen by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of represent the indemnified party its ability to finance would present such defense, or 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 such indemnified party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party which, if party; (iii) the indemnifying party and such shall not have employed counsel satisfactory to the indemnified party were to be represented by represent the same counsel, could result in indemnified party within a conflict of interest for such counsel or materially prejudice the prosecution reasonable time after notice of the defenses available to institution of such indemnified party, then such action; or (iv) the indemnifying party shall authorize the indemnified party shall have the right to employ separate counselcounsel at the expense of the indemnifying party. No indemnifying party shall, in which case connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one in addition to any local or regulatory counsel or firm of counsel) selected by a majority for all indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in interest respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties shall be borne are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by the such indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified partiesparty. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party shall party, consent to entry of any judgment or enter into any settlement without or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the consent subject matter of such proceeding and (which consentii) does not include any statement as to or any admission of fault, in the case culpability or a failure to act by or on behalf of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying any indemnified party.
(d) If In the indemnification from event that the indemnifying party indemnity provided for in this Section 11 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party hereunder in respect of for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damagesdamages and liabilities (including, liabilities without limitation, legal or other expenses referred reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to therein, then the which such indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the actions statements or omissions which resulted in such losses, claims, damages, damages or liabilities and expenses(or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, such by the indemnifying party on the one hand or the indemnified party, party on the other and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid statement or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceedingomission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11(d8(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under For purposes of this Section 118, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the indemnifying parties total amount to be contributed by any Holder pursuant to this Section 8(d) shall indemnify each indemnified party be limited to the fullest extent provided net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in Section 11(a) the offering to which such Registration Statement or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)Prospectus relates.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall 8 will remain in full force and effect irrespective effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnified party, so long as such indemnified indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of acting fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in a fraudulent, reckless or grossly negligent manneramount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 3 contracts
Sources: Registration Rights Agreement (Visteon Corp), Registration Rights Agreement (Goldman Sachs Group Inc), Registration Rights Agreement (Ubs Ag)
Indemnification; Contribution. (a) The Company shall ITC Investments agrees to indemnify and hold harmless each Shareholder holding Registrable Securities, the FoundationAffiliates, its officers and directors, officers, employees, shareholders, managers and agents of each such Shareholder and each Person who controls any agent such Shareholder within the meaning of either the Securities Act or investment adviser thereof the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a registration statement as originally filed or in any Registration Statementamendment thereof, any Prospectus or preliminary Prospectusthe Disclosure Package, or any preliminary, final or summary prospectus or Free Writing Prospectus included in any such registration statement, or in any amendment thereof or supplement to any of the foregoingthereto, or (ii) any arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a the Disclosure Package, or any preliminary, final or summary prospectus or Free Writing Prospectus or a preliminary Prospectusincluded in any such registration statement, in light of the circumstances then existingunder which they were made) not misleading, except and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act investigating or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for defending any such loss, claim, damage, liability (or action (whether or proceeding not the indemnified party is a party to any proceeding); provided, that ITC Investments will not be liable in respect thereof) any case to the extent that any such loss, claim, damage, liability or expense that arises (i) out of an or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in the preliminary Prospectus if the Foundation, reliance upon and in conformity with written information furnished to ITC Investments by or other Person on behalf of the Foundationany such Shareholder specifically for inclusion therein including any notice and questionnaire, failed to send or deliver a copy (ii) out of a final Prospectus to the Person asserting the claim prior to the written confirmation sales of the sale of the Registrable Securities made during a Suspension Period after notice is given pursuant to such Person and such statement or omission was corrected Section 3.3(c). This indemnity agreement will be in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof addition to the Foundation in accordance with this Agreementany liability which ITC Investments may otherwise have.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company Each Shareholder severally (and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and not jointly) agrees to indemnify and hold harmless the CompanyITC Investments and each of its Affiliates, any underwriterdirectors, each such party's officers employees, shareholders, managers and directors agents and each Person who controls each such party (ITC Investments within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against any agent or investment adviser thereof against and all losses, claims, damagesdamages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a registration statement as originally filed or in any Registration Statementamendment thereof, or in the Disclosure Package or any Prospectus or preliminary Shareholder Free Writing Prospectus, preliminary, final or summary prospectus included in any such registration statement, or in any amendment thereof or supplement to any of the foregoingthereto, or (ii) any arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a the Disclosure Package, or any preliminary, final or summary prospectus or Free Writing Prospectus or a preliminary Prospectusincluded in any such registration statement, in light of the circumstances then existingunder which they were made) not misleading, to the extent, but only to the extent extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is made contained in reliance on and in conformity with any written information with respect relating to the Foundation such Shareholder furnished to the Company ITC Investments by or any underwriter by the Foundation or its counsel on behalf of such Shareholder specifically for inclusion therein. Notwithstanding ; provided, that the foregoing provisions of total amount to be indemnified by such Shareholder pursuant to this Section 13(b), the Foundation 3.8(b) shall not be liable limited to the Company, any underwriter, each net proceeds (after deducting underwriters’ discounts and commissions and other reimbursable expenses) received by such parties' officers or directors, any other Person who controls any Shareholder in the offering to which such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue registration statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementprospectus relates.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 3.8 of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may will, if a claim indemnification or contribution pursuant in respect thereof is to this Section 11 (provided that failure to give such notification shall not affect the obligations of be made against the indemnifying party pursuant to under this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall 3.8, 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 such action and such failure results in material prejudice to the indemnifying party and 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 participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoingindemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the indemnifying party shall not have employed use of counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination chosen by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of represent the indemnified party its ability to finance would present such defense, or 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 such indemnified party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party which, if party; (iii) the indemnifying party and such shall not have employed counsel satisfactory to the indemnified party were to be represented by represent the same counsel, could result in indemnified party within a conflict of interest for such counsel or materially prejudice the prosecution reasonable time after notice of the defenses available to institution of such indemnified party, then such action; or (iv) the indemnifying party shall authorize the indemnified party shall have the right to employ separate counselcounsel at the expense of the indemnifying party. No indemnifying party shall, in which case connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one in addition to any local or regulatory counsel or firm of counsel) selected by a majority for all indemnified parties. An indemnifying party shall not be liable under this Section 3.8 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in interest respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties shall be borne are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by the such indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified partiesparty. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party shall party, consent to entry of any judgment or enter into any settlement without or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the consent subject matter of such proceeding and (which consentii) does not include any statement as to or any admission of fault, in the case culpability or a failure to act by or on behalf of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying any indemnified party.
(d) If In the indemnification from event that the indemnifying party indemnity provided for in this Section 11 3.8(a) or Section 3.8(b) above is unavailable to or insufficient to hold harmless an indemnified party hereunder in respect of for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages, damages and liabilities (including legal or other expenses referred reasonably incurred in connection with investigating or defending same) to therein, then the which such indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other hand in connection with the actions statements or omissions which resulted in such losses, claims, damages, damages or liabilities and expenses(or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, such by the indemnifying party on the one hand or the indemnified party, party on the other and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid statement or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceedingomission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d3.8(d) were determined by pro rata allocation (even if the Shareholders holding Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d3.8(d). The amount paid to or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 3.8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11(d3.8(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under For purposes of this Section 113.8, each Person who controls any Shareholder holding Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Shareholder, agent or underwriter shall have the same rights to contribution as such Shareholder, agent or underwriter, and each Person who controls ITC Investments within the meaning of either the Securities Act or the Exchange Act and each officer and director of ITC Investments shall have the same rights to contribution as ITC Investments, subject in each case to the applicable terms and conditions of this Section 3.8(d). Notwithstanding the foregoing, the indemnifying parties total amount to be contributed by any Shareholder pursuant to this Section 3.8(d) shall indemnify each indemnified party be limited to the fullest extent provided net proceeds (after deducting underwriters’ discounts and commissions and other reimbursable expenses) received by such Shareholder in Section 11(a) the offering to which such registration statement or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)prospectus relates.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall 3.8 will remain in full force and effect irrespective effect, regardless of any investigation made by or on behalf of any Shareholder holding Registrable Securities or ITC Investments or any of the officers, directors or controlling Persons referred to in this Section 3.8, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnified party, so long as such indemnified indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under this Section 3.8 to the fullest extent permitted by Applicable Law; provided, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of acting fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in a fraudulent, reckless or grossly negligent manneramount to the net amount (after deducting underwriters’ discounts and commissions and other reimbursable expenses) of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 3 contracts
Sources: Shareholders Agreement (Fortis Inc.), Shareholders’ Agreement (Fortis Inc.), Subscription Agreement
Indemnification; Contribution. (a) The Company shall shall, and it hereby agrees to, (i) indemnify and hold harmless the Foundation, its officers and directorseach Stockholder in any offering or sale of Registrable Shares, and such Stockholder’s partners, members, managers and Affiliates (but not, for the avoidance of doubt, any agent Stockholder Designee in such person’s capacity as a Director of the Company) and each Person, if any, who controls any of the foregoing Persons within the meaning of the Securities Act or investment adviser thereof the Exchange Act from and against any and all losses, claims, damages, liabilities or liabilities, or any actions or proceedings (whether commenced or threatened) in respect thereof and costs and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement reached in accordance with the requirements for consent as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus or preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement to any of the foregoingthereto, or (ii) any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a any preliminary or final Prospectus or a preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement, in the light of the circumstances then existing) in which they were made), not misleading, except ; and (ii) reimburse periodically upon demand each indemnified party for any legal or other out-of-pocket expenses reasonably incurred by such indemnified party in each case insofar as the same arise out of connection with investigating or are based upon, defending (or preparing to defend) any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten OfferingClaims; provided, the Company shall indemnify the underwriters thereofhowever, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), that the Company shall not be liable to the Foundation, any Person who participates as an underwriter indemnified party in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within case to the meaning of Section 15 of extent, and only to the Securities Act or Section 20 of the Exchange Act)extent, under this Section 11 for that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, or preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the preliminary Prospectus Company about a Stockholder by such indemnified party expressly for use therein, or if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus Stockholder sold securities to the Person asserting the claim alleging such Claims without sending or giving, at or prior to the written confirmation of the sale such sale, a copy of the Registrable Securities to such Person and such statement applicable Prospectus (excluding any documents incorporated by reference therein) or omission was corrected in such final Prospectus and of the applicable Prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Company had previously and timely furnished sufficient copies thereof to the Foundation such Stockholder a reasonable period of time prior to such sale and such Prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in accordance with this Agreementsuch Registration Statement.
(b) In connection with any registration of Registrable Securities pursuant to this AgreementEach Stockholder shall, the Foundation shall furnish to the Company and any underwriter in writing such informationhereby agrees to, including the name, address severally and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to not jointly (i) indemnify and hold harmless the Company in any offering or sale of Registrable Shares, each director of the Company, any underwriter, each such party's officers and directors officer of the Company who shall sign the applicable Registration Statement and each Person Person, if any, who controls each such party (any of the foregoing Persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct from and against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement reached in accordance with the requirements for consent as provided herein), and any agent or investment adviser thereof against all lossesactions or proceedings in respect thereof, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus or preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement to any of the foregoingthereto, or (ii) any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a any preliminary or final Prospectus or a preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement), in the light of the circumstances then existing) in which they were made), not misleading; and (ii) reimburse periodically upon demand each indemnified party for any legal or other out-of-pocket expenses reasonably incurred by such indemnified party in connection with investigating or defending (or preparing to defend) any such Claims, but in each case to the extent, and only to the extent extent, that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission is or alleged omission was made in reliance on upon and in conformity with information with respect to the Foundation about such Stockholder furnished in writing to the Company by such Stockholder expressly for use therein, or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable if such Stockholder sold securities to the CompanyPerson alleging such Claims without sending or giving, any underwriterat or prior to the written confirmation of such sale, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 a copy of the Securities Act applicable Prospectus (excluding any documents incorporated by reference therein) or Section 20 of the Exchange Actapplicable Prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), or any agent or investment advisor thereof, if the Foundation Company had provided information curing any previously furnished copies thereof to the Stockholders a reasonable period of time prior to such sale and such Prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in time reasonably sufficient such Registration Statement; provided, however, that the aggregate liability of a Stockholder under this Section 6.6 shall be limited to prevent an amount equal to the inclusion dollar amount of the net proceeds received by such untrue statement Stockholder from Stockholder Shares sold by such Stockholder pursuant to such Registration Statement or omission Prospectus in the Registration Statementtransaction giving rise to such Claim.
(c) Any Person entitled to indemnification hereunder Each Stockholder, on the one hand, and the Company, on the other hand, agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of that if, for any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofreason, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this indemnification provisions contemplated by Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory6.6(a) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (iiSection 6.6(b) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with the actions which respect to statements or omissions that that resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsClaims. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 6.6(c) is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by a such indemnified party in such proportion as a result is appropriate to reflect not only such relative faults, but also the relative benefits of the lossesindemnifying party and the indemnified party, claims, damages, liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and expenses referred to above a Stockholder on the other hand shall be deemed to include, subject be in the same proportion as the total net proceeds from the offering of securities (net of discounts and commissions but before deducting expenses) giving rise to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred applicable Claim bears to the net proceeds received by such indemnified party in connection Stockholder with any investigation or proceedingrespect to its sale of Registrable Shares giving rise to such Claim. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d6.6(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d6.6(c), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered limitations set forth in Section 6.7) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending (or preparing to the public exceeds the amount of defend) any damages which such underwriter has otherwise been required to pay by reason of such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Notwithstanding the foregoing, no Stockholder shall be liable to contribute any amount in excess of the dollar amount of the net proceeds received by such Stockholder from Stockholder Shares sold by such Stockholder pursuant to such Registration Statement or Prospectus in the transaction giving rise to such Claim less any amounts previously paid by such Stockholder pursuant to Section 11, the indemnifying parties shall indemnify each indemnified party 6.6(b). The Stockholders obligations to the fullest extent contribute as provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)6.6(c) are several and not joint.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 3 contracts
Sources: Stockholders Agreement (Avista Capital Partners GP, LLC), Stockholders Agreement (Angiodynamics Inc), Stockholders Agreement (Angiodynamics Inc)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless each Underwriter and each person who controls any Underwriter within the Foundation, its officers meanings of the 1933 Act against any and directors, and any agent or investment adviser thereof against all losses, claims, damagesdamages or liabilities, joint or several, to which they or any of them may 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 and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as originally filed or in any Registration Statementamendment thereof, or in any Prospectus preliminary prospectus or preliminary the Prospectus, or in any amendment thereof or supplement to any of the foregoingthereto, or (ii) any arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act investigating or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for defending any such loss, claim, damage, liability or action; provided, however, that (i) the Company will not be liable in any such case to the extent that any such loss, claim, damage or action or proceeding in respect thereof) or expense that liability arises out of an or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the preliminary Prospectus if the Foundation, Company by or other Person on behalf of any Underwriter through you specifically for use in connection with the Foundationpreparation thereof, failed and (ii) such indemnity with respect to send any preliminary prospectus shall not inure to the benefit of any Underwriter (or deliver any person controlling such Underwriter) from whom the person assessing any such loss, claim, damage or liability purchased the Securities which are the subject thereof if such person did not receive a copy of a final the Prospectus to (or the Person asserting the claim Prospectus as amended or supplemented) at or prior to the written confirmation of the sale of the Registrable such Securities to such Person person in any case where such delivery is required by the 1933 Act and such the untrue statement or omission of a material fact contained in such preliminary prospectus was corrected in such final the Prospectus and (or the Prospectus as amended or supplemented). This indemnity agreement will be in addition to any liability which the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementmay otherwise have.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and Each Underwriter severally agrees to indemnify and hold harmless the Company, any underwritereach of its directors, each such party's of its officers and directors who signs the Registration Statement, and each Person person who controls each such party (the Company within the meaning of Section 15 of the Securities Act or Section 20 of 1933 Act, to the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by same extent as the foregoing indemnity from the Company to each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleadingUnderwriter, but only with reference to the extent that any written information relating to such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation Underwriter furnished to the Company by or any underwriter by the Foundation or its counsel on behalf of such Underwriter through you specifically for inclusion therein. Notwithstanding use in the preparation of the documents referred to in the foregoing provisions of this Section 13(b), the Foundation shall not indemnity. This indemnity agreement will be liable in addition to the Company, any underwriter, each such parties' officers or directors, liability which any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementUnderwriter may otherwise have.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 6 of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may will, if a claim indemnification or contribution pursuant in respect thereof is to this Section 11 (provided that failure to give such notification shall not affect the obligations of be made against the indemnifying party pursuant to under this Section 11 except to the extent 6, notify the indemnifying party shall in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have been actually prejudiced as a result of such failure)to any indemnified party otherwise than under this Section 6. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein andtherein, and to the extent that it shall wish, jointly with any other indemnifying may elect by written notice delivered to the indemnified party similarly notifiedpromptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall notparty; provided, except with the consent of the indemnified partyhowever, be counsel to the indemnifying 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, in any such action include both the indemnified party and the indemnifying party and such indemnified party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party whichparty, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party parties shall have the right to employ select separate counsel, counsel to assert such legal defenses and to otherwise participate in which case the fees and expenses defense of one counsel such action on behalf of such indemnified party or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry Upon receipt of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification notice from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesunder this Section 6, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and will not be liable to the indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, for any legal and or other fees and expenses reasonably subsequently incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that it would the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by you in the case of paragraph (a) of this Section 6, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable if contribution pursuant to this Section 11(din circumstances in which the indemnification provided for in paragraph (a) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d)6 is due in accordance with its terms but is for any reason held by a court to be unavailable from the Company on grounds of policy or otherwise, the Company and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) 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 Underwriter 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; provided that (y) in no underwriter case shall any Underwriter (except as may be required provided in the agreement among underwriters relating to contribute the offering of the Securities, if any) be responsible for any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed underwriting discount applicable to the public were offered to the public exceeds the amount of any damages which Securities purchased by such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission Underwriter hereunder and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions For purposes of this Section 11 6, each person who controls an Underwriter within the meaning of the 1933 Act shall have the same rights to contribution as the Company, subject in each case to clause (y) of this paragraph (d). Any party entitled to contribution will notify the Company, 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 in addition made against another party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any liability which any party other obligation it or they may have to any other party and shall survive any termination of hereunder or otherwise than under this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerparagraph (d).
Appears in 3 contracts
Sources: Underwriting Agreement (Coca Cola Enterprises Inc), Underwriting Agreement (Coca Cola Enterprises Inc), Underwriting Agreement (Coca Cola Enterprises Inc)
Indemnification; Contribution. (a) The Company shall shall, and it hereby agrees to, indemnify and hold harmless the FoundationStockholder, its officers the Stockholder’s Subsidiaries and directorstheir controlling Persons, and if any, in any agent offering or investment adviser thereof sale of the Registrable Securities, including pursuant to Section 5.1, Section 5.2 or Section 5.4, against all any losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' actual out-of-pocket fees and expensesof counsel) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of the Company as provided herein), or threatened actionactions or proceedings in respect thereof, suitarise out of, proceeding relate to, are in connection with, or investigation arising out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, or any Prospectus preliminary or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of, relate to, are in connection with, or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse periodically the Stockholder and its Subsidiaries for any actual and documented out-of-pocket legal or other actual and documented out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of, relate to, are in connection with, or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon information furnished to the Company by the Stockholder, any of its Subsidiaries, any underwriter or any Representative of the foregoingStockholder, expressly for use therein, or by the Stockholder’s failure to furnish the Company, upon request, with the information with respect to the Stockholder or its Subsidiaries, or any underwriter or Representative of the Stockholder, or the Stockholder’s or its Subsidiary’s intended method of distribution, that is the subject of the untrue statement or omission.
(iib) The Stockholder shall, and hereby agrees to, (i) indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Securities against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or actions or proceedings in respect thereof, arise out of, relate to, are in connection with, or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of, relate to, are in connection with, or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company or any underwriter by the Foundation Stockholder expressly for use therein, and (ii) reimburse the Company for any actual and documented out-of-pocket legal or its counsel specifically for inclusion therein. Notwithstanding other out-of-pocket expenses reasonably incurred by the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers Company in connection with investigating or directors, any other Person who controls defending any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementClaim.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to The Stockholder and the indemnifying party after the receipt by such indemnified party of Company agree that if, for any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofreason, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this indemnification provisions contemplated by Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory5.9(a) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (iiSection 5.9(b) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with respect to the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsapplicable offering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 5.9(c) is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative fault, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d5.9(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d5.9(c), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 5.10) any damages which actual and documented out-of-pocket legal or other out-of-pocket fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 3 contracts
Sources: Stockholder's Agreement (Horton D R Inc /De/), Stockholder Agreement (Horton D R Inc /De/), Stockholder's Agreement (Forestar Group Inc.)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the Foundation, its officers each Indemnitee from and directors, against any and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statementprepricing prospectus, any Prospectus registration statement or preliminary Prospectus, prospectus or in any amendment or supplement to any of the foregoingthereto, or (ii) arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same such losses, claims, damages, liabilities or expenses arise out of or are based upon, upon any such untrue statement or omission or alleged untrue statement or omission which has been made therein or omitted therefrom in reliance on upon and in conformity with the information with respect relating to the Foundation a participating Holder furnished in writing to the Company by the Foundation or its counsel on behalf of a participating Holder expressly for use thereinin connection therewith. In The foregoing indemnity agreement shall be in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against the Company, such Indemnitee shall promptly notify the Company, and the Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. "The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (x) the Company has agreed in writing to pay such fees and expenses, (y) the Company has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Indemnitce and the Company, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and the Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that the Company shall, in connection with an Underwritten Offeringany one such action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be reimbursed as they are incurred. The Company shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent, but if settled with such written consent, or if there be a final judgment for the plaintiff in any such action, suit or proceeding, the Company shall agrees to indemnify and hold harmless such Indemnitee, to the underwriters thereofextent provided in the preceding paragraph, their officersfrom and against any loss, directors claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each of the participating Holders, severally and agents not jointly, agree to indemnify and each Person hold harmless the Company, its directors, its officers who sign the registration statement, and any person who controls such underwriters (the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) , to the same extent as provided above the foregoing indemnity from the Company to an Indemnitee, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable information relating to the Foundation, any Person who participates as an underwriter such Holder furnished in the offering writing by or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests Holder expressly for use in the Registration Statement relating to such registration statement, prospectus or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusprepricing prospectus, or any amendment or supplement to thereto. If any of the foregoingaction, suit or (ii) any omission or alleged omission to state therein a material fact required to proceeding shall be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to brought against the Company, any underwriter, each such parties' officers or of its directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)officer, or any agent such controlling person based on the registration statement, prospectus or investment advisor thereofany prepricing prospectus, if the Foundation had provided information curing or any untrue statement amendment or omission supplement thereto, and in time reasonably sufficient to prevent the inclusion respect of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of which indemnity may be sought against any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution Holder pursuant to this Section 11 9(c), such Holder shall have the rights and duties given to the Company by Section 9(b) hereof (provided except that failure to give if the Company shall have assumed the defense thereof such notification Holder shall not affect the obligations of the indemnifying party pursuant be required to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party do so, but may employ separate counsel therein and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume in the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by at the indemnifying party Holder's expense), and the fees Company, its directors, any such officer, and expenses of all other counsel retained any such controlling person shall have the rights and duties given to an Indemnitee by the indemnified parties Section 9(b) hereof. The foregoing indemnity agreement shall be paid by in addition to any liability which the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partyparticipating Holders may otherwise have.
(d) If the indemnification from the indemnifying party provided for in this Section 11 9 is unavailable to an indemnified party hereunder under paragraphs (a) or (c) hereof in respect of any losses, claims, damages, liabilities or expenses referred to therein, . then the an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company and indemnified party of the participating Holders in connection with the actions which statements or omissions that resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company on the one hand and indemnified party a participating Holder on the other hand shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company on the one hand or by such indemnifying party or indemnified party, participating Holder on the other hand and the parties' relative intent, knowledge, access to or information and opportunity to correct or prevent such actionstatement or omission.
(e) The Company and the participating Holders agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by a pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d) hereof. The amount paid or payable by a an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to above in Section 9(d) hereof shall be deemed to include, subject to the limitations set forth in Section 11(c) hereofabove, any legal and or other fees and expenses reasonably incurred by such indemnified party in connection with investigating any investigation claim or defending any such action, suit or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d)8, no underwriter participating Holder 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 proceeds to the public were offered to the public such participating Holder exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation participating Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If .
(f) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or 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 action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification is available or contribution under this Section 11, 9 shall be paid by the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party as such losses, claims, damages, liabilities or any other equitable consideration provided for expenses are incurred. The indemnity and contribution agreements contained in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 9 shall remain operative and in full force and effect irrespective effect, regardless of (i) any investigation made by or on behalf of an indemnified partyIndemnitee, so long as such indemnified party is not guilty the Company, its directors or officers, or any person controlling the Company, and (ii) any termination of acting in a fraudulent, reckless or grossly negligent mannerthis Agreement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Royale Investments Inc), Registration Rights Agreement (Shidler Jay H), Registration Rights Agreement (Hamlin Clay W Iii)
Indemnification; Contribution. (a) The To the fullest extent permitted by applicable law, the Company shall shall, and it hereby agrees to, indemnify and hold harmless ▇▇▇▇▇▇, each underwriter and the Foundationequityholders, its controlling persons, directors, officers and directorsemployees of each of the foregoing in any offering or Sale of the Registrable Securities, and including pursuant to Section 4.01, Section 4.02 or Section 4.05, against any agent or investment adviser thereof against all losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' actual and documented out-of-pocket fees and expensesof legal counsel reasonably incurred) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of the Company as provided herein), or threatened actionactions or proceedings in respect thereof, suitarise out of, proceeding relate to, are in connection with, or investigation arising out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus or preliminary Prospectuscontained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of, relate to, are in connection with, or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse periodically each such indemnified Person for any actual and documented out-of-pocket legal or other actual and documented out-of-pocket expenses reasonably incurred by it in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of, relate to, are in connection with, or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, or preliminary or final Prospectus, or amendment or supplement thereto, in reliance upon written information furnished to the Company (x) by ▇▇▇▇▇▇ or any Representative of ▇▇▇▇▇▇, it being understood and agreed that the only such information furnished by ▇▇▇▇▇▇ or any Representative of ▇▇▇▇▇▇ consists of the foregoinginformation described as such in Section 4.13(b) or (y) by or on behalf of any underwriter expressly for use therein.
(b) To the fullest extent permitted by applicable law, ▇▇▇▇▇▇ shall, and hereby agrees to, (i) indemnify and hold harmless the Company, its directors, officers, employees and its other equityholders and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or Sale of Registrable Securities by it against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or (ii) actions or proceedings in respect thereof, arise out of, relate to, are in connection with, or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of, relate to, are in connection with, or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information regarding ▇▇▇▇▇▇ furnished to the preliminary Prospectus if Company by ▇▇▇▇▇▇ or any Representative of ▇▇▇▇▇▇, it being understood and agreed that the Foundationonly such information furnished by ▇▇▇▇▇▇ or any Representative of ▇▇▇▇▇▇ consists of the number of shares of Common Stock owned by ▇▇▇▇▇▇, the number of Registrable Securities proposed to be Sold by ▇▇▇▇▇▇, the name and address of ▇▇▇▇▇▇ and the method of distribution (including the description of any debt-for-equity exchange) proposed by ▇▇▇▇▇▇, any financial statements or other Person on behalf of information (or omissions thereof) about the Foundation, failed to send or deliver a copy of a final Prospectus SpinCo Business to the Person asserting extent relating to any date or period ended on or before the claim Effective Date, in each case, to the extent provided by ▇▇▇▇▇▇ or any Representative of ▇▇▇▇▇▇ (for the avoidance of doubt, including information provided prior to the written confirmation of date hereof, whether for inclusion in the sale of the Registrable Securities to such Person and such Company’s registration statement on Form 10 or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
otherwise) (b) In connection with any registration of Registrable Securities pursuant to this Agreementcollectively, the Foundation shall furnish to the Company “▇▇▇▇▇▇ Information”) and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) reimburse the Company for any omission actual and documented out-of-pocket legal or alleged omission other out-of-pocket expenses reasonably incurred by the Company in connection with investigating or defending any such Claim; provided, however, that in no event shall any indemnity or reimbursement by ▇▇▇▇▇▇ under this Section 4.13(b) exceed an amount equal to state therein a material fact required to be stated therein or necessary to make the statements therein net proceeds received by ▇▇▇▇▇▇ (or, in the case of a Prospectus or a preliminary ProspectusDebt Exchange, in light the anticipated fair value of the circumstances then existingsecurities or indebtedness received by ▇▇▇▇▇▇) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Sale of Registrable Securities Act giving rise to such indemnification or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementreimbursement obligation.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to ▇▇▇▇▇▇ and the indemnifying party after the receipt by such indemnified party of Company agree that if, for any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofreason, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this indemnification provisions contemplated by Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory4.13(a) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (iiSection 4.13(b) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, each Indemnifying Party (as defined below) shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party, on the one hand, and the indemnified party in connection party, on the other hand, with respect to the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsapplicable offering of securities. The relative fault of such indemnifying party Indemnifying Party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party Indemnifying Party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 4.13(c) is not permitted by applicable law, then each Indemnifying Party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the Indemnifying Party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d4.13(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d4.13(c), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 4.14) any damages which actual and documented out-of-pocket legal or other out-of-pocket fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Registration Rights Agreement (Amentum Holdings, Inc.), Registration Rights Agreement (Amazon Holdco Inc.)
Indemnification; Contribution. (a) The Company shall shall, and hereby agrees to, indemnify and hold harmless the Foundationeach Participating Holder and its partners, its officers and members, directors, officers, employees, agents and controlling Persons, if any, in any agent offering or investment adviser thereof sale of the Participating Shares pursuant to the Shelf Registration Statement, against all any losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of the Company as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising (i) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any the Shelf Registration Statement, or any Prospectus or preliminary ProspectusProspectus contained therein with respect to Participating Shares, or any amendment or supplement to thereto, or any of the foregoingdocument incorporated by reference therein, or (ii) arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in each case in light of the circumstances in which they were made, not misleading; provided that the Company shall not be liable to any such Participating Holder in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Shelf Registration Statement, or Prospectus or preliminary Prospectus relating to the Participating Shares, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Participating Holder with respect to such Participating Holder expressly for use therein, or by such Participating Holder’s failure to furnish the Company, upon the Company’s reasonable request, with the information with respect to such Participating Holder, or such Participating Holder’s intended method of distribution, that is the subject of the untrue statement or omission, or if such Participating Holder sold securities to the Person alleging such Claims without sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable Prospectus (excluding any documents incorporated by reference therein) or of the applicable Prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Company had previously furnished copies thereof to the Participating Holders, and such Prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in the Shelf Registration Statement.
(b) Each Participating Holder, severally and not jointly, shall, and hereby agrees to, indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, in any offering or sale of Participating Shares pursuant to the Shelf Registration Statement, against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement effected with the consent of such Participating Holder as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement or any Prospectus or preliminary Prospectus contained therein with respect to the Participating Shares, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company or by such Participating Holder with respect to such Participating Holder expressly for use therein; provided, that in no event shall any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of indemnity under this Section 13(b2.05(b), when combined with any contribution under Section 2.05(d) exceed the Foundation shall not be liable to total proceeds from the Company, any underwriter, each offering received by such parties' officers Participating Holder unless such liability arises out of or directors, any other Person who controls any such party is based on Fraud (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission as defined in the Registration StatementMerger Agreement) or Willful Breach (as defined in the Merger Agreement) by such Participating Holder.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under Section 2.05(a) or Section 2.05(b) of any written notice of the commencement of any action, suit, action or proceeding or investigation or threat thereof made in writing for which indemnification under Section 2.05(a) or Section 2.05(b) may be requested, such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give shall notify such notification shall not affect the obligations indemnifying party in writing of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result commencement of such failure)action or proceeding. In case any such action or proceeding shall be brought against any indemnified party and it shall notify the notifies an indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party)and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing; provided, if however, that (i) if the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party fails to take charge of reasonable steps necessary to defend diligently the defense of such action or proceeding within a reasonable time twenty (20) days after receiving notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by from such indemnified party that counsel selected pursuant the indemnified party believes it has failed to the immediately preceding sentence do so; (ii) if such indemnified party who is unsatisfactory) a defendant in any action or if proceeding which is also brought against the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party reasonably shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party which are not available to the indemnifying party; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then then, in any such case, the indemnified party shall have the right to employ separate assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties) and the indemnifying party shall be liable for any expenses therefor (including, without limitation, any such reasonable counsel’s fees). If the indemnifying party is not entitled to, in which case or elects not to, assume the defense of a claim, it will not be obligated to pay the fees and expenses of more than one counsel for each indemnified party with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent (not to be unreasonably withheld, conditioned or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest delayed). No indemnifying party shall, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, compromise or consent to entry of any judgment or enter into any settlement without agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 2.05(a) or Section 2.05(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent (which consent, or settlement is solely for monetary damages and includes an unconditional release of the indemnified party from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relieflitigation, shall and does not be unreasonably withheld) include a statement or admission of each indemnifying fault, culpability or a failure to act, by or on behalf of the indemnified party.
(d) If The Participating Holders and the Company agree that if, for any reason, the indemnification from the indemnifying party provided for in this provisions contemplated by Section 11 is 2.05(a) or Section 2.05(b) hereof are unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with respect to the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsapplicable offering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 2.05(d) is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative fault, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d2.05(d) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in the preceding sentences of this Section 11(d2.05(d). Notwithstanding any of the provisions of foregoing, in no event shall any contribution by any Participating Holder under this Section 11(d2.05(d), no underwriter shall be required to contribute when combined with any amount in excess of the amount amounts payable or paid by which such Participating Holder under Section 2.05(b), exceed the total price at which proceeds from the Registrable Securities underwritten offering received by it and distributed to such Participating Holder, unless such liability arises out of or is based on Fraud (as defined in the public were offered to Merger Agreement) or Willful Breach (as defined in the public exceeds the amount of any damages which Merger Agreement) by such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionParticipating Holder. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Alphabet Inc.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(ai) The To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Holder, and the Foundationpartners, its officers and members, officers, directors, employees, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any agent underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or investment adviser thereof underwriter within the meaning of the Securities Act or the Exchange Act, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' attorney’s fees and expenses) disbursements and reasonable expenses of investigation (collectively, “Losses”), incurred by such party Person pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon any of the following statements or omissions (icollectively, a “Violation”):
(1) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, including any Registration Statement, any preliminary Prospectus or preliminary Prospectusfinal Prospectus contained therein, or any amendment amendments or supplement to any of supplements thereto; or
(2) the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectustherein, in light of the circumstances then existing) under which they were made, not misleading; provided, except however, that the indemnification required by this Section 2(f)(i) shall not apply to amounts paid in each settlement of any such Loss if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case insofar as for any such Loss to the same arise extent that it arises out of or are is based upon, any such untrue statement or omission made upon a Violation which occurs in reliance on upon and in conformity with information with respect to the Foundation furnished in writing to the Company by the Foundation or its counsel on behalf of a Holder or any underwriter expressly for use therein. In in connection with an Underwritten Offeringsuch registration; and provided, the Company further, that any indemnification required by this Section 2(f)(i) shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) not apply to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls that any such underwriter (within the meaning of Section 15 of the Securities Act Loss is based on or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, included in the or omitted from any preliminary Prospectus prospectus if the Foundationfinal prospectus shall correct such untrue statement or alleged untrue statement, or other Person on behalf of the Foundationsuch omission or alleged omission, failed to send or deliver and a copy of a the final Prospectus prospectus has not been sent or given by the Holder or any underwriter to the Person asserting the claim alleging damage at or prior to the written confirmation of sale to such Person; and provided, further, that this indemnity shall not apply to the sale extent that any such Loss is based on an offer or Transfer of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and during any period which the Company had previously has notified the Holder that such offers and timely furnished sufficient copies thereof to Transfers must cease under the Foundation in accordance with this Agreement, including under Section 2(b), Section 2(c)(ii) or Section 2(c)(v) .
(bii) In connection with any registration of Registrable Securities pursuant to this AgreementTo the extent permitted by applicable law, the Foundation Holders (severally and not jointly) shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwritereach of the directors of the Company, each such party's of the officers and directors and of the Company who shall have signed the Resale Registration Statement, each Person Person, if any, who controls each such party (the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and each officer, director, partner, and employee of such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) Losses incurred by each such party Person pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusViolation, in light of the circumstances then existing) not misleading, but only each case to the extent that such Violation arises out of or is based upon information furnished in writing by or on behalf of a Holder expressly for use in connection with such registration, or upon the Holder’s failure to properly and timely deliver an “official” Prospectus, or upon the Holder’s use of a written or oral prospectus other than the “official” Prospectus; provided, however, that any indemnification required by this Section 2(f)(ii) shall not apply to amounts paid in settlement of any such untrue statement or omission Loss if such settlement is made in reliance on and in conformity with information with respect to effected without the Foundation furnished to consent of the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation Holders (which consent shall not be liable to unreasonably withheld) and in no event shall the Company, amount of any underwriter, each such parties' officers or directors, any other Person who controls any such party (within indemnity obligation under this Section 2(f)(ii) exceed the meaning of Section 15 of gross proceeds from the Securities Act or Section 20 of applicable offering received by the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementHolders.
(ciii) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 2(f) of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 2(f), such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereof, thereof with counsel reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses 2(f) to the extent, but only to the extent, of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) prejudice but shall not relieve the indemnifying party shall not of any liability that it may have employed counsel reasonably satisfactory to such any indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected otherwise than pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then this Section 2(f). Any such indemnified party shall have the right to employ separate counselcounsel in any such action, claim or proceeding and to participate in which case the defense thereof, but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party and could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and any other counsel retained by the of such indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent with respect to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an such action, suit, claim or proceeding exclusively seeking monetary reliefproceeding, in which event the indemnifying party shall not be unreasonably withheld) obligated to pay the reasonable fees and expenses of each indemnifying partysuch additional counsel or counsels).
(div) If the indemnification required by this Section 2(f) from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Losses referred to therein, then in this Section 2(f) :
(1) the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which that resulted in such losses, claims, damages, liabilities and expensesLosses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c2(f)(i), 2(f)(ii) hereofand 2(f)(iii), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The ;
(2) the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d2(f)(iv) were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d2(f)(iv)(1). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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(f11(e) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available .
(v) The obligations of the Company and the Holders under this Section 11, 2(f) shall survive the indemnifying parties shall indemnify each indemnified party completion of any offering of Registrable Securities pursuant to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of registration statement under this Agreement. The indemnification provided by this Section 11 shall remain in full force , and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerotherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (Akorn Inc), Registration Rights Agreement (Akorn Inc)
Indemnification; Contribution. (a) The Company shall shall, and it hereby agrees to, indemnify and hold harmless the Foundationeach Participating Investor and its partners, members, officers, directors, employees and controlling Persons, if any, and each underwriter, its officers and partners, officers, directors, employees and controlling Persons, if any, in any agent offering or investment adviser thereof sale of Common Shares, against all any losses, claims, damagesdamages or liabilities to which each such indemnified party may become subject, liabilities and expenses insofar as such losses, claims, damages or liabilities, or actions or proceedings in respect thereof, including any amounts paid in settlement as provided herein (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened actioncollectively, suit"Claims"), proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, or any Prospectus preliminary or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse each Participating Investor or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by it in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of the foregoingor are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by such Participating Investor or any underwriter expressly for use therein.
(iib) Each Participating Investor shall, and hereby agrees to (1) indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Common Shares, against any Claims to which each such indemnified party may become subject, insofar as such Claims arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company by such Participating Investor expressly for use therein, and (2) reimburse the Company for any legal or any underwriter other out-of-pocket expenses reasonably incurred by the Foundation Company in connection with investigating or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls defending any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementClaim.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under Section 4.7(a) or Section 4.7(b) of any written notice of the commencement of any action, suit, action or proceeding or investigation or threat thereof made in writing for which indemnification under Section 4.7(a) or Section 4.7(b) may be requested, such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of notify the indemnifying party pursuant in writing of the commencement of such action or proceeding, but the omission so to this Section 11 except to the extent notify the indemnifying party shall not relieve it from any liability which it may have been actually prejudiced as a result to any indemnified party in respect of such failure)action or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and in no event shall such omission relieve the indemnifying party from any other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party and it shall notify the an indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party)and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) If the indemnifying party shall is not have employed counsel reasonably satisfactory to such indemnified party to take charge of entitled to, or elects not to, assume the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure claim, it will not be obligated to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case pay the fees and expenses of more than one counsel for each indemnified party with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest delayed. No indemnifying party shall, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, compromise or consent to entry of any judgment or enter into any settlement without agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 4.7(a) or Section 4.7(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent (which consent, or settlement includes an unconditional release of the indemnified party from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relief, shall litigation and does not be unreasonably withheld) of each indemnifying partysubject the indemnified party to any material injunctive relief or other material equitable remedy.
(d) If Each Participating Investor and the Company agree that if, for any reason, the indemnification from the indemnifying party provided for in this Section 11 is provisions contemplated by Sections 4.7(a) or 4.7(b) hereof are unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to thereintherein (other than as a result of the provisos thereto), then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of and benefits derived by the indemnifying party party, on the one hand, and the indemnified party in connection with party, on the actions which resulted in such losses, claims, damages, liabilities and expensesother hand, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a an indemnified party as a result of the losses, claims, damages, liabilities and expenses Claims referred to above shall be deemed to include, include (subject to the limitations set forth in Section 11(c4.7(c) hereof, ) any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation such action, proceeding or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Shareholders Agreement (Arch Capital Group LTD), Shareholders Agreement (H&f Corp Investors Iv Bermuda LTD)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the Foundation, its officers each Indemnitee from and directors, against any and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statementprepricing prospectus, any Prospectus registration statement or preliminary Prospectus, prospectus or in any amendment or supplement to any of the foregoingthereto, or (ii) arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same such losses, claims, damages, liabilities or expenses arise out of or are based upon, upon any such untrue statement or omission or alleged untrue statement or omission which has been made therein or omitted therefrom in reliance on upon and in conformity with the information with respect relating to the Foundation a participating Holder furnished in writing to the Company by the Foundation or its counsel on behalf of a participating Holder expressly for use thereinin connection therewith. In The foregoing indemnity agreement shall be in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against the Company, such Indemnitee shall promptly notify the Company, and the Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (x) the Company has agreed in writing to pay such fees and expenses, (y) the Company has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and the Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that the Company shall, in connection with an Underwritten Offeringany one such action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be reimbursed as they are incurred. The Company shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent, but if settled with such written consent, or if there be a final judgment for the plaintiff in any such action, suit or proceeding, the Company shall agrees to indemnify and hold harmless such Indemnitee, to the underwriters thereofextent provided in the preceding paragraph, their officersfrom and against any loss, directors claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each of the participating Holders, severally and agents not jointly, agree to indemnify and each Person hold harmless the Company, its directors, its officers who sign the registration statement, and any person who controls such underwriters (the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) , to the same extent as provided above the foregoing indemnity from the Company to an Indemnitee, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable information relating to the Foundation, any Person who participates as an underwriter such Holder furnished in the offering writing by or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests Holder expressly for use in the Registration Statement relating to such registration statement, prospectus or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusprepricing prospectus, or any amendment or supplement to thereto. If any of the foregoingaction, suit or (ii) any omission or alleged omission to state therein a material fact required to proceeding shall be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to brought against the Company, any underwriter, each such parties' officers or of its directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)officer, or any agent such controlling person based on the registration statement, prospectus or investment advisor thereofany prepricing prospectus, if the Foundation had provided information curing or any untrue statement amendment or omission supplement thereto, and in time reasonably sufficient to prevent the inclusion respect of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of which indemnity may be sought against any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution Holder pursuant to this Section 11 9(c), such Holder shall have the rights and duties given to the Company by Section 9(b) hereof (provided except that failure to give if the Company shall have assumed the defense thereof such notification Holder shall not affect the obligations of the indemnifying party pursuant be required to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party do so, but may employ separate counsel therein and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume in the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by at the indemnifying party Holder's expense), and the fees Company, its directors, any such officer, and expenses of all other counsel retained any such controlling person shall have the rights and duties given to an Indemnitee by the indemnified parties Section 9(b) hereof. The foregoing indemnity agreement shall be paid by in addition to any liability which the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partyparticipating Holders may otherwise have.
(d) If the indemnification from the indemnifying party provided for in this Section 11 9 is unavailable to an indemnified party hereunder under paragraphs (a) or (c) hereof in respect of any losses, claims, damages, liabilities or expenses referred to therein, . then the an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company and indemnified party of the participating Holders in connection with the actions which statements or omissions that resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company on the one hand and indemnified party a participating Holder on the other hand shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company on the one hand or by such indemnifying party or indemnified party, participating Holder on the other hand and the parties' relative intent, knowledge, access to or information and opportunity to correct or prevent such actionstatement or omission.
(e) The Company and the participating Holders agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by a pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d) hereof. The amount paid or payable by a an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to above in Section 9(d) hereof shall be deemed to include, subject to the limitations set forth in Section 11(c) hereofabove, any legal and or other fees and expenses reasonably incurred by such indemnified party in connection with investigating any investigation claim or defending any such action, suit or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d)9, no underwriter participating Holder 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 proceeds to the public were offered to the public such participating Holder exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation participating Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If .
(f) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or 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 action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification is available or contribution under this Section 11, 9 shall be paid by the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party as such losses, claims, damages, liabilities or any other equitable consideration provided for expenses are incurred. The indemnity and contribution agreements contained in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 9 shall remain operative and in full force and effect irrespective effect, regardless of (i) any investigation made by or on behalf of an indemnified partyIndemnitee, so long as such indemnified party is not guilty the Company, its directors or officers, or any person controlling the Company, and (ii) any termination of acting in a fraudulent, reckless or grossly negligent mannerthis Agreement.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Corporate Office Properties, L.P.), Registration Rights Agreement (Corporate Office Properties Trust)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(a) The To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the Foundation, its officers and directorsmeaning of the Securities Act, and each officer, director, partner, agent and employee of such Selling Holder and such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and expenses) disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or any other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any Registration Statement, any Prospectus preliminary prospectus or preliminary Prospectusfinal prospectus contained therein, or any amendment amendments or supplement to any of the foregoing, or supplements thereto;
(ii) any The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading; or
(in iii) Any violation or alleged violation by the case of a Prospectus or a preliminary Prospectus, in light Company of the circumstances then existingSecurities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 5(a) shall not misleadingapply to amounts paid in settlement of any such loss, except claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in each any such case insofar as for any such loss, claim, damage, liability or expense to the same arise extent (and only to the extent) that it arises out of or are is based upon, any such untrue statement or omission made upon a Violation which occurs in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company by the Foundation or its counsel any indemnified party expressly for use therein. In in connection with such registration; provided, further, that the indemnity agreement contained in this Section 5 shall not apply to any underwriter to the extent that any such loss is based on or arises out of an Underwritten Offeringuntrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The Company shall also indemnify underwriters participating in the underwriters thereof, their officers, directors and agents distribution and each Person person who controls any such underwriters underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the FoundationSelling Holders. Notwithstanding the foregoing provisions The Company may also require in any underwriting agreement that it signs, reasonable indemnification and contribution agreements in favor of this Section 11(a), the Company shall not be liable to from the Foundation, any Person who participates as an underwriter in underwriters and the offering or sale of Selling Holders which are selling Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementunderwritten offering.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Side Agreement (Jfax Com Inc), Side Agreement (Efax Com Inc)
Indemnification; Contribution. (a) The If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the Foundation, its officers and directorsmeaning of the Securities Act, and each officer, director, partner, and employee of such Selling Holder and such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' ’ fees and expenses) disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any Registration Statement, any Prospectus preliminary prospectus or preliminary Prospectusfinal prospectus contained therein, or any amendment amendments or supplement to any of the foregoing, or supplements thereto; or
(ii) any The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (not misleading; provided, however, that the indemnification required by this Section 7.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the case of a Prospectus or a preliminary Prospectus, in light consent of the circumstances then existing) Company (which consent shall not misleadingbe unreasonably withheld), except nor shall the Company be liable in each any such case insofar as for any such loss, claim, damage, liability or expense to the same arise extent that it arises out of or are is based upon, any such untrue statement or omission made upon a Violation which occurs in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company by the Foundation or its counsel indemnified party expressly for use therein. In in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 shall not apply to any underwriter to the extent that any such loss is based on or arises out of an Underwritten Offeringuntrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the underwriters thereofdistribution, their officers, directors and directors, agents and employees and each Person person who controls such underwriters persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the FoundationSelling Holders.
6.2. Notwithstanding To the foregoing provisions extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of this Section 11(a)its directors, each of its officers who shall have signed the Company shall not be liable to the Foundationregistration statement, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other each Person, if any, who controls any such underwriter (the Company within the meaning of Section 15 of the Securities Act or Section 20 Act, any other Selling Holder, any controlling Person of the Exchange Act), under this Section 11 for any such lossother Selling Holder and each officer, claimdirector, damagepartner, liability (or action or proceeding in respect thereof) or expense that arises out and employee of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or such other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person Selling Holder and such statement or omission was corrected in such final Prospectus controlling Person, against any and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' ’ fees and expenses) disbursements and expenses of investigation, incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusViolation, in light of each case to the circumstances then existing) not misleading, but extent (and only to the extent extent) that any such untrue statement or omission is made Violation occurs in reliance on upon and in conformity with written information furnished by such Selling Holder expressly for use in connection with respect to such registration; provided, however, that (x) the Foundation furnished to the Company or any underwriter indemnification required by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the Foundation consent of the relevant Selling Holder of Registrable Securities, which consent shall not be liable to unreasonably withheld, and (y) in no event shall the Company, amount of any underwriter, each indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementSelling Holder.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party 6.3. Promptly after the receipt by such an indemnified party under this Section 7 of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 7, such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice of the commencement thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel reasonably satisfactory the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for 7 but shall not relieve the indemnifying party of any legal liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses of other counsel or any other expenses, in each case subsequently incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the right to employ separate counsel in connection with any such action, claim or proceeding and to participate in the defense thereof other than reasonable costs thereof, but the fees and expenses of investigation. Notwithstanding such counsel shall be the foregoing, if expenses of such indemnified party unless (i) the indemnifying party shall not have employed counsel reasonably satisfactory has agreed to pay such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, fees and expenses or (ii) the actual indemnifying party shall have failed to promptly assume the defense of such action, claim or potential defendants in, proceeding or targets of, (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both the indemnifying party and such indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it which are different from or additional in addition to those available to the indemnifying party which, if and that the indemnifying party and assertion of such indemnified party were to be represented by the same counsel, could result in defenses would create a conflict of interest for such that counsel or materially prejudice employed by the prosecution indemnifying party could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the defenses available indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, then it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party shall have the right a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to employ separate counselsuch action, claim or proceeding, in which case event the indemnifying party shall be obligated to pay the fees and expenses of one such additional counsel or firm counsels). No indemnifying party shall be liable to an indemnified party for any settlement of counsel (plus one local any action, proceeding or regulatory counsel or firm of counsel) selected by a majority in interest claim without the written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, which consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) 6.4. If the indemnification required by this Section 7 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 7:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof7.1 and Section 7.2, any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d7.4(i). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 117, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in this Section 11(a) or (b) hereof, as the case may be, 7 without regard to the relative fault of such indemnifying parties party or indemnified party or any other equitable consideration provided for referred to in Section 7.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and 7 shall survive the completion of any termination offering of Registrable Securities pursuant to a registration statement under this Agreement. The indemnification provided by this Section 11 shall remain in full force , and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerotherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (Gleacher & Company, Inc.), Registration Rights Agreement (First Albany Companies Inc)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless harmless, to the Foundationfullest extent permitted by law, its officers each Stockholder in any offering or sale of Registrable Common Shares pursuant to this Agreement, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Common Shares, and each Person, if any, who controls such Stockholder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and any agent or investment adviser thereof affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees ’ fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) (collectively, “Losses”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon upon: (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, any Issuer Free Writing Prospectus or (ii) any omission “issuer information” filed or alleged omission to state therein a material fact required to be stated therein filed pursuant to Rule 433(d) under the Securities Act, or necessary to make the statements therein (in the case of a Prospectus or Prospectus, a preliminary Prospectus, an Issuer Free Writing Prospectus or “issuer information,” in the light of the circumstances then existing) not misleading, except in each case insofar as the same such statements or omissions arise out of or are based upon, upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to the Foundation such Stockholder furnished in writing to the Company by the Foundation such Stockholder or its counsel expressly for use therein. In , (B) the use of any Prospectus, Issuer Free Writing Prospectus or “issuer information” after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus, Issuer Free Writing Prospectus or “issuer information” after such time as the Company has advised the Stockholders that the filing of an amendment or supplement thereto is required, except such Prospectus, Issuer Free Writing Prospectus or “issuer information” as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with an Underwritten Offeringany such registration. Notwithstanding the foregoing provisions of this Section 8(a), the Company shall not be liable to any such Stockholder or underwriter or to any other indemnified party under the indemnity agreement in this Section 8(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either: (i) (A) such Stockholder 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 Common Shares by such Stockholder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission; or (ii) (A) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (B) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Stockholder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Common Shares by such Stockholder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Common Shares by such indemnified party.
(b) In connection with any Registration Statement filed pursuant to this Agreement, each Stockholder holding Registrable Common Shares to be covered thereby shall, severally and not jointly with any other Stockholders, indemnify and hold harmless, to the underwriters thereoffullest extent permitted by law, their officersthe Company, directors each Person, if any, who participates as an underwriter in any such offering and agents sale of Registrable Common Shares and each Person Person, if any, who controls the Company or such underwriters (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof their respective directors, trustees, officers, partners, agents, employees and affiliates, against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) Losses incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, any Issuer Free Writing Prospectus or (ii) any omission “issuer information” filed or alleged omission to state therein a material fact required to be stated therein filed pursuant to Rule 433(d) under the Securities Act, or necessary to make the statements therein (in the case of a Prospectus, preliminary Prospectus or a preliminary Issuer Free Writing Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation such Stockholder furnished in writing to the Company or any underwriter by the Foundation such Stockholder or its counsel specifically for inclusion use therein. Notwithstanding ; provided, however, that no Stockholder shall be required to indemnify the foregoing provisions of Company or any other indemnified party under this Section 13(b), the Foundation shall not be liable 11(b) with respect to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 amount in excess of the Securities Act or Section 20 amount of the Exchange Act), or any agent or investment advisor thereof, if total net proceeds received by such Stockholder from sales of the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion Registrable Common Shares of such untrue statement or omission in the Stockholder under such Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to unless in the reasonable satisfaction judgment of any indemnified party, based on the indemnified party its ability opinion of counsel, a conflict of interest is likely to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both exist between the indemnifying party and such indemnified party and any other of such indemnified party shall have reasonably concluded that there may be legal defenses available parties with respect to it such claim, in which are different from or additional to those available to event the indemnifying party which, if the indemnifying party and such indemnified party were to shall not be represented by the same counsel, could result in a conflict of interest liable for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of (i) more than one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) for all Stockholders holding Registrable Common Shares who are indemnified parties, selected by the Stockholders holding a majority in interest Majority of the Registrable Common Shares held by all Stockholders who are indemnified parties (which selection shall be borne by reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party and who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel retained for all Stockholders holding Registrable Common Shares who are indemnified parties, selected by the Stockholders holding a Majority of the Registrable Common Shares who are indemnified parties (which selection shall be paid reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified partiesparty of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 11. No indemnified party shall consent to entry of any judgment or enter entry into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to thereinLosses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expensesLosses, as well as any other relevant equitable considerations; provided, however, that no Stockholder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Stockholder from sales of the Registrable Common Shares of the Stockholder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof), any legal and or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 11(d). If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in Section 11(a) or (b) hereof11(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any indemnifying party may have to any other indemnified party and shall survive any the termination of this Agreement. .
(f) The indemnification provided and contribution required by this Section 11 shall remain in full force and effect irrespective be made by periodic payments of the amount thereof during the course of any investigation made by action, suit, proceeding or on behalf of an indemnified partyinvestigation, so long as such indemnified party is not guilty of acting in a fraudulent, reckless and when invoices are received or grossly negligent mannerLosses are incurred.
Appears in 2 contracts
Sources: Registration Rights Agreement (PAETEC Holding Corp.), Registration Rights Agreement (PAETEC Holding Corp.)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company shall will indemnify and hold harmless the Foundationeach Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), its officers and directors, officers, employees, representatives and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out agents of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoingthem, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, person who controls any such underwriter (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, reasonable 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 this Section 11 for the Securities Act, the 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) or (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; provided, however, that the Company will not be liable to the extent that (1) 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 Holder in accordance with Section 4(b) of this Agreement for use in such registration statement, or (or action or proceeding 2) in respect thereof) or expense that arises out the case of an a sale directly by such Holder (including a sale of Registrable Securities through any underwriter retained by such Holder to engage in a distribution solely on behalf of such Holder), such untrue statement or alleged untrue statement or omission or alleged omission was contained in the a preliminary Prospectus if the Foundationprospectus and corrected in a final or amended prospectus, or other Person on behalf of the Foundation, and such Holder failed to send or deliver a copy of a the final Prospectus to the Person asserting the claim or amended prospectus at or prior to the written confirmation of the sale of the Registrable Securities to the Person asserting any such Person and loss, claim, damage or liability in any case where such delivery is required by the Securities Act or any state securities laws. With respect to such untrue statement or omission was corrected or alleged untrue statement or omission in such final Prospectus and the information furnished in writing to the Company had previously and timely furnished sufficient copies thereof to the Foundation by or on behalf of such Holder in accordance with Section 4(b) of this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests Agreement for use in the Registration Statement relating to such registration or the related Prospectus statement, such Holder, on a several and agrees to not joint basis, will indemnify and hold harmless the CompanyCompany (including its directors, any underwriterofficers, employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such party's officers partners) and directors directors, officers, employees, representatives and agents of any of them, and each Person person who controls each such party (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities reasonable expenses and expenses liabilities, joint or several (including any reasonable attorneys' fees investigation, legal and expenses) other expenses incurred by each such party pursuant to in connection with, and any actual or threatened amount paid in settlement of, any action, suit, suit or proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statementclaim asserted, any Prospectus or preliminary Prospectusas the same are incurred), to which they, or any amendment or supplement to any of them, may become subject under the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)Securities Act, the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Exchange Act or Section 20 of the Exchange Act)other federal or state statutory law or regulation, at common law or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementotherwise.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(db) If the indemnification from the indemnifying party provided for in this Section 11 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, expenses or liabilities or expenses referred to therein, then the each indemnifying partyparty under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the other Holders from the offering of the Registrable 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 indemnifying party Company and indemnified party the other Holders in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and expensesexpenses or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Holders shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and the Holders, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of such indemnifying party the Company and indemnified party the Holders shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, such indemnifying party by or indemnified party, on behalf of the Company or the Holders and the parties' Parties’ relative intent, knowledge, knowledge and access to information and opportunity to correct or prevent such actioninformation. The amount paid or payable by a party as a result of Company and the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto Holders agree that it would not be just and equitable if contribution pursuant to this Section 11(d5(b) 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 above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No Person 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 person who was not found guilty of such fraudulent misrepresentation. If indemnification is available under .
(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 115 shall be deemed to include, subject to the indemnifying parties shall indemnify each limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party to the fullest extent provided in Section 11(a) connection with investigating or (b) hereofdefending any such action or claim, payable as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration same are incurred. The indemnification and contribution provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall 5 will remain in full force and effect irrespective regardless of any investigation made by or on behalf of an the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld. Any indemnified party that proposes to assert the right to be indemnified under this Section 5 will, promptly after receipt of notice of commencement or threat of any claim or action against such party in respect of which a claim is to be made against an indemnifying party under this Section 5 notify the indemnifying party in writing (such written notice, an “Indemnification Notice”) of the commencement or threat of such action, enclosing a copy of all papers served or notices received (if applicable), but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to any indemnified party under the foregoing provisions of this Section 5 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. The indemnified party will have the right to retain its own counsel in any such action if (i) the employment of counsel by the indemnified party has been authorized by the indemnifying party, (ii) the indemnified party’s counsel, with the concurrence of indemnifying party’s counsel, shall have reasonably concluded that there is a substantial likelihood of a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of such action or (iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action within a reasonable period of time following its receipt of the Indemnification Notice, in each of which cases the fees and expenses of the indemnified party’s separate counsel shall be at the expense of the indemnifying party; provided, however, that the indemnified party shall agree to repay any expenses so advanced hereunder if it is ultimately determined by a court of competent jurisdiction that the indemnified party to whom such expenses are advanced is not entitled to be indemnified; and provided, further, that so long as such the indemnified party is not guilty has reasonably concluded that no conflict of acting interest exists, the indemnifying party may assume the defense of any action hereunder with counsel reasonably satisfactory to the indemnified party.
(d) In the event of an underwritten offering of Registrable Securities under this Agreement, the Company and the Holders shall enter into standard indemnification and underwriting agreements with the underwriter thereof. To the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the provisions of this Section 5, the provisions in the underwriting agreement shall control.
(e) The obligation of the Company and Holders under this Section 5 shall survive the completion of any offering of Registrable Securities in a fraudulentregistration statement under Section 2, reckless or grossly negligent mannerand otherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (Aptevo Therapeutics Inc.), Class a Stockholders’ Registration Rights Agreement (Emergent BioSolutions Inc.)
Indemnification; Contribution. (a) The Company shall, and shall indemnify cause each of its Subsidiaries to, jointly and severally, without limitation as to time, indemnify, defend and hold harmless harmless, to the Foundationfull extent permitted by law, its officers and each holder of Registrable Securities, the partners, members, officers, directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and employees of each of them, each Person who controls each such underwriters holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) ), the partners, members, officers, directors, agents and employees of each such controlling person and any financial or investment adviser (each, a “Covered Person”), to the same fullest extent lawful, from and against any and all losses, claims, damages, liabilities, actions or proceedings (whether commenced or threatened), costs (including, without limitation, costs of preparation and attorneys’ fees) and expenses (including expenses of investigation) (collectively, “Losses”), as provided above with respect incurred, arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or form of prospectus or in any amendment or supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the indemnification extent that the same arise out of or are based upon information furnished in writing to the Foundation. Notwithstanding Company by such Covered Person or the foregoing provisions related holder of this Section 11(a)Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided that the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (underwriters within the meaning of Section 15 of the Securities Act or Section 20 of to the Exchange Act), under this Section 11 for extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the any preliminary Prospectus prospectus if the Foundation, or other (i) such Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (ii) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (iii) the Company has complied with its obligations under Section 5D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any registration statement provided for under this Section 5 is made through underwriters, no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence. If the Public Offering pursuant to any registration statement provided for under this Article 5 is made through underwriters, the Company agrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 5F with respect to the indemnification of the holders of Registrable Securities; provided that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of the Registrable Securities to such Person and if such statement or omission was corrected in such amended or supplemented final Prospectus prospectus prior to such written confirmation and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance underwriter was provided with this Agreementsuch amended or supplemented final prospectus.
(b) In connection with any registration Registration Statement in which a holder of Registrable Securities pursuant to this Agreementis participating, the Foundation such holder, or an authorized officer of such holder, shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, information regarding such holder as the Company or any underwriter reasonably requests for use in the connection with any Registration Statement relating or prospectus and agrees, severally and not jointly, to such registration or the related Prospectus and agrees to indemnify indemnify, defend and hold harmless to the full extent permitted by law, the Company, any underwriterits directors, each such party's officers officers, agents and directors and employees, each Person who controls each such party the Company (within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act), and any agent the partners, members, directors, officers, agents or investment adviser thereof employees of such controlling persons, from and against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation Losses arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusprospectus, or any amendment or supplement to any form of the foregoingprospectus, or (ii) arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, to the extent, but only to the extent extent, that any such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to was relied upon by the Company in preparation of such Registration Statement, prospectus or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions form of this Section 13(b), the Foundation prospectus; provided that such holder of Registrable Securities shall not be liable in any such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any underwriter, each such parties' officers or directors, any other Person who controls any such party (within holder of Registrable Securities hereunder be greater in amount than the meaning of Section 15 dollar amount of the Securities Act or Section 20 proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Exchange Act), Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion on behalf of such untrue statement or omission in the Registration Statementindemnified party.
(c) Any If any Person shall be entitled to indemnification indemnity hereunder agrees to (an “Indemnified Party”), such Indemnified Party shall give prompt written notice to the indemnifying party after or parties from which such indemnity is sought (the receipt by such indemnified party of any written notice “Indemnifying Parties”) of the commencement of any action, suit, proceeding or investigation or written threat thereof made in writing for (a “Proceeding”) with respect to which such indemnified party may claim Indemnified Party seeks indemnification or contribution pursuant to this Section 11 (hereto; provided that the failure to give such notification so notify the Indemnifying Parties shall not affect relieve the obligations of the indemnifying party pursuant to this Section 11 Indemnifying Parties from any obligation or liability except to the extent that the indemnifying party Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall have been actually prejudiced as a result the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such failure). In case Proceeding, to assume, at the Indemnifying Parties’ expense, the defense of any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofProceeding, with counsel reasonably satisfactory to such indemnified party Indemnified Party; provided that an Indemnified Party or parties (who if more than one such Indemnified Party is named in any Proceeding) shall nothave the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, except with but the consent fees and expenses of such counsel shall be at the indemnified party, be counsel expense of such Indemnified Party or parties unless: (i) the Indemnifying Parties agree to pay such fees and expenses; (ii) the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so Indemnifying Parties fail promptly to assume the defense thereof, the indemnifying party shall not be liable of such Proceeding or fail to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed employ counsel reasonably satisfactory to such indemnified party Indemnified Party or parties; or (iii) the named parties to take charge any such Proceeding (including any impleaded parties) include both such Indemnified Party or parties and the Indemnifying Parties or an Affiliate of the defense of Indemnifying Parties or such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defenseIndemnified Parties, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal one or more defenses available to it which such Indemnified Party or parties that are different from or additional to those available to the indemnifying party whichIndemnifying Parties, in which case, if such Indemnified Party or parties notifies the indemnifying party and such indemnified party were Indemnifying Parties in writing that it elects to be represented by employ separate counsel at the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution expense of the defenses available to such indemnified partyIndemnifying Parties, then such indemnified party the Indemnifying Parties shall not have the right to employ separate counselassume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in which case connection with any one such Proceeding or separate but substantially similar or related Proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one together with appropriate local or regulatory counsel or firm of counsel) selected at any time for such Indemnified Party or parties. Whether or not such defense is assumed by a majority in interest of the indemnified Indemnifying Parties, such Indemnifying Parties or Indemnified Party or parties shall not be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties subject to any liability for any settlement made without its or their consent (but such consent shall not be paid by the indemnified partiesunreasonably withheld). No indemnified party The Indemnifying Parties shall not consent to entry of any judgment or enter into any settlement which (i) provides for other than monetary damages without the consent of the Indemnified Party or parties (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, consent shall not be unreasonably withheldwithheld or delayed) or (ii) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or parties of each indemnifying partya release, in form and substance satisfactory to the Indemnified Party or parties, from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to indemnification hereunder.
(d) If the indemnification from the indemnifying party provided for in this Section 11 5F is unavailable to an indemnified party hereunder Indemnified Party or is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities or expenses referred to thereinwhich this Section 5F would otherwise apply by its terms, then the indemnifying partyeach applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have an obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party, on the one hand, and indemnified party such Indemnified Party, on the other hand, in connection with the actions which actions, statements or omissions that resulted in such losses, claims, damages, liabilities and expenses, Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party Indemnifying Party, on the one hand, and indemnified party Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, include any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 5F(a) or proceeding5F(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d5F(d) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 11(d5F(d). Notwithstanding the provisions of this Section 11(d5F(d), no underwriter shall be required to contribute any amount in excess an Indemnifying Party that is a holder of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public net proceeds received by such Indemnifying Party exceeds the amount of any damages which the Foundation that such Indemnifying Party has otherwise been required to pay by reason reasons of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Securityholders Agreement (Vitamin Shoppe, Inc.), Securityholders Agreement (Vs Holdings, Inc.)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the Foundationoffering or sale of such securities, its officers (iii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any agent such Holder or investment adviser thereof underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and expenses liabilities, judgments or expenses, joint or several (including reasonable attorneys' fees and expensesor actions or proceedings, whether commenced or threatened, in respect thereof) incurred by (collectively, "Claims"), to which such party pursuant to any actual indemnified Person may become subject under either Section 15 of the Securities Act or threatened actionSection 20 of the Exchange Act or otherwise, suit, proceeding or investigation arising insofar as such Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Statement or Prospectus or preliminary Prospectus, (or any amendment or supplement to any of the foregoingthereto), or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except in each case insofar as the same arise out such losses, claims, damages, liabilities, judgments or expenses of or any such indemnified Person; (x) are based upon, caused by any such untrue statement or omission made or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in reliance writing to the Company by or on and in conformity with information behalf of any of such indemnified Person expressly for use therein; (y) with respect to the Foundation preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the underwriters thereofwritten consent of the Company. The Company shall not, their officerswithout the prior written consent of each indemnified Person, directors settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and agents not jointly, to indemnify and each hold harmless the Company and its directors, officers and any Person who controls such underwriters controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as provided above the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the indemnification extent of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Persongross proceeds, if any, who controls received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as be brought against the Company or its directors or officers or any underwriter reasonably requests for use such controlling Person in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning respect of Section 15 which indemnity may be sought against a Holder of the Restricted Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred covered by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of such Holder shall have the foregoing, or rights and duties given the Company in Section 2.7(a) (ii) any omission or alleged omission to state therein a material fact except that the Holder may but shall not be required to be stated therein or necessary to make assume the statements therein (in the case of a Prospectus or a preliminary Prospectusdefense thereof), in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation its directors or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other such controlling Person who controls any such party (within shall have the meaning of rights and duties given to each Holder by Section 15 of the Securities Act or Section 20 of the Exchange Act2.7(a), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 2.7 is unavailable to an indemnified party hereunder under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the indemnifying partycase of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, claims damages, liabilities and liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and indemnified party such Holder in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such indemnifying party and indemnified party Holder on the other shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company or by such indemnifying party or indemnified party, Holder and the parties' parties relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 11(c) hereof2.7(a), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation action or proceedingclaim. The parties hereto Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 11(d2.7(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d)the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d2.7(c), no underwriter Holder (and none of its related indemnified Persons) shall be required to contribute contribute, in the aggregate, any amount in excess of the amount by which the total price at which dollar amount of proceeds received by such Holder upon the Registrable sale of the Restricted Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for The indemnity and contribution provisions contained in this Section 11(d).
(e) The provisions of this Section 11 shall be 2.7 are in addition to any liability which any party the indemnifying Person may otherwise have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an the indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerPersons referred to above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Senesco Technologies Inc), Registration Rights Agreement (Senesco Technologies Inc)
Indemnification; Contribution. (a) The Company shall shall, and it hereby agrees to, indemnify and hold harmless the Foundationeach Stockholder (which, for purposes of this Article VI, shall be deemed to include each holder of Registrable Shares) and its officers controlled Affiliates and their respective directors, officers, members, employees, managers, partners, accountants, attorneys and agents and each Person who controls (within the meaning of the Securities Act and the Exchange Act) such Persons, in any agent offering or investment adviser thereof sale of the Registrable Shares, from and against all any losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of the Company as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue or alleged untrue statement of a material fact contained in any Registration Statement, registration statement used to register Registrable Shares pursuant to this Agreement or any Prospectus amendment thereof or preliminary Prospectussupplement thereto, or any amendment or supplement to any of the foregoingdocument incorporated by reference therein, or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) any untrue or alleged untrue statement of a material fact in any prospectus or preliminary prospectus used to register Registrable Shares pursuant to this Agreement or any amendment thereof or supplement thereto, or any document incorporated by reference therein, or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) under which they were made, not misleading, except and the Company shall, and it hereby agrees to, reimburse periodically the indemnified person for any legal or other out-of-pocket expenses reasonably incurred by them in each case insofar as the same arise out of connection with investigating or are based upon, defending any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten OfferingClaims; provided, the Company shall indemnify the underwriters thereofhowever, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), that the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for Person in any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense case only to the extent that arises any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the preliminary Prospectus if the Foundationsuch registration statement, or other Person on behalf of the Foundationpreliminary or final prospectus, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the amendment or supplement thereto, made in reliance upon and in conformity with written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely information furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests Stockholder Group expressly for use in therein. The members of the Registration Statement relating Stockholder Group shall, and hereby agree, severally and not jointly, to such registration or the related Prospectus and agrees to (i) indemnify and hold harmless the Company, any underwriterits directors, each such party's officers and directors officers, employees and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such Persons, if any, in any offering or sale of Registrable Shares, against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), and any agent or investment adviser thereof against all lossesactions or proceedings in respect thereof, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, registration statement used to register Registrable Shares pursuant to this Agreement or any Prospectus amendment thereof or preliminary Prospectussupplement thereto, or any amendment or supplement to any of the foregoingdocument incorporated by reference therein, or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) any untrue or alleged untrue statement of a material fact in any prospectus or preliminary prospectus used to register Registrable Shares pursuant to this Agreement or any amendment thereof or supplement thereto, or any document incorporated by reference therein, or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) under which they were made, not misleading, but in each case only to the extent that any such untrue statement or alleged untrue statement or omission is or alleged omission was made in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company or any underwriter by the Foundation Stockholder Group expressly for use therein, and (ii) reimburse the Company for any legal or its counsel specifically for inclusion thereinother out-of-pocket expenses reasonably incurred by the Company in connection with investigating or defending any such Claim. Notwithstanding the foregoing provisions foregoing, no member of the Stockholder Group shall be liable under this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 6.1(a) for amounts in excess of the Securities Act or Section 20 proceeds (net of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of underwriting discounts and commissions) received by such untrue statement or omission holder in the Registration Statementoffering giving rise to such liability.
(cb) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under Section 6.1(a) or Section 6.1(b) of any written notice of the commencement of any action, suit, action or proceeding or investigation or threat thereof made in writing for which indemnification under Section 6.1(a) or Section 6.1(b) may be requested, such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give shall notify such notification shall not affect the obligations indemnifying party in writing of the indemnifying party pursuant commencement of such action or proceeding; but the omission so to this Section 11 except to the extent notify the indemnifying party shall not relieve it from any liability which it may have been actually prejudiced as a result to any indemnified party in respect of such failure)action or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and in no event shall such omission relieve the indemnifying party from any other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party and it shall notify the an indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party)and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing; provided, if however, that (i) if the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party fails to take charge of reasonable steps necessary to defend diligently the defense of such action or proceeding within a reasonable time 20 days after receiving notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by from such indemnified party that counsel selected pursuant the indemnified party believes it has failed to the immediately preceding sentence do so; (ii) if such indemnified party who is unsatisfactory) a defendant in any action or if proceeding which is also brought against the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party reasonably shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party which are not available to the indemnifying party; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then then, in any such case, the indemnified party shall have the right to employ separate assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction) and the indemnifying party shall be liable for any expenses therefor (including, without limitation, any such reasonable counsel’s fees). If the indemnifying party is not entitled to, in which case or elects not to, assume the defense of a claim, it will not be obligated to pay the fees and expenses of more than one counsel for each indemnified party with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest delayed. No indemnifying party shall, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, compromise or consent to entry of any judgment or enter into any settlement without agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 6.1(a) or Section 6.1(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent (which consent, or settlement includes an unconditional release of the indemnified party from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relieflitigation, shall does not be unreasonably withheld) subject the indemnified party to any material injunctive relief or other material equitable remedy and does not include a statement or admission of each indemnifying fault, culpability or a failure to act, by or on behalf of the indemnified party.
(dc) If The members of the Stockholder Group and the Company agree that if, for any reason, the indemnification from the indemnifying party provided for in this Section 11 is provisions contemplated by Sections 6.1(a) or 6.1(b) hereof are unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of of, the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with the actions which resulted in respect to such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsoffering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d6.1(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d6.1(c), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 6.1(b) hereof) any damages which legal or other fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11Notwithstanding the foregoing, no member of the indemnifying parties Stockholder Group shall indemnify each indemnified party be required to make a contribution in excess of the amount received by such person from the sale of its Registrable Shares in connection with the offering that gave rise to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)contribution obligation.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Stockholders Agreement (Engility Holdings, Inc.), Agreement and Plan of Merger (Engility Holdings, Inc.)
Indemnification; Contribution. (a) The Company shall shall, and it hereby agrees to, indemnify and hold harmless the Foundationeach Participating Investor and its partners, members, officers, directors, employees and controlling Persons, if any, and each underwriter, its officers and partners, officers, directors, employees and controlling Persons, if any, in any agent offering or investment adviser thereof sale of Common Shares, against all any losses, claims, damagesdamages or liabilities to which each such indemnified party may become subject, liabilities and expenses insofar as such losses, claims, damages or liabilities, or actions or proceedings in respect thereof, including any amounts paid in settlement as provided herein (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened actioncollectively, suit"Claims"), proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, or any Prospectus preliminary or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse each Participating Investor or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by it in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of the foregoingor are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by such Participating Investor or any underwriter expressly for use therein.
(iib) Each Participating Investor shall, and hereby agrees to (1) indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Common Shares, against any Claims to which each such indemnified party may become subject, insofar as such Claims arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company by such Participating Investor expressly for use therein, and (2) reimburse the Company for any legal or any underwriter other out-of-pocket expenses reasonably incurred by the Foundation Company in connection with investigating or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls defending any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementClaim.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under Section 4.7(a) or Section 4.7(b) of any written notice of the commencement of any action, suit, action or proceeding or investigation or threat thereof made in writing for which indemnification under Section 4.7(a) or Section 4.7(b) may be requested, such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of notify the indemnifying party pursuant in writing of the commencement of such action or proceeding, but the omission so to this Section 11 except to the extent notify the indemnifying party shall not relieve it from any liability which it may have been actually prejudiced as a result to any indemnified party in respect of such failure)action or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and in no event shall such omission relieve the indemnifying party from any other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party and it shall notify the an indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party)and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) If the indemnifying party shall is not have employed counsel reasonably satisfactory to such indemnified party to take charge of entitled to, or elects not to, assume the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure claim, it will not be obligated to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case pay the fees and expenses of more than one counsel for each indemnified party with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest delayed. No indemnifying party shall, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, compromise or consent to entry of any judgment or enter into any settlement without agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 4.7(a) or Section 4.7(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent (which consent, or settlement includes an unconditional release of the indemnified party from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relief, shall litigation and does not be unreasonably withheld) of each indemnifying partysubject the indemnified party to any material injunctive relief or other material equitable remedy.
(d) If Each Participating Investor and the Company agree that if, for any reason, the indemnification from the indemnifying party provided for in this Section 11 is provisions contemplated by Sections 4.7(a) or 4.7(b) hereof are unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to thereintherein (other than as a result of the provisos thereto), then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of and benefits derived by the indemnifying party party, on the one hand, and the indemnified party in connection with party, on the actions which resulted in such losses, claims, damages, liabilities and expensesother hand, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a an indemnified party as a result of the losses, claims, damages, liabilities and expenses Claims referred to above shall be deemed to include, include (subject to the limitations set forth in Section 11(c4.7(c) hereof, ) any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation such action, pro- ceeding or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Shareholders Agreement (Arch Capital Group LTD), Shareholder Agreement (Arch Capital Group LTD)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company shall will, to the extent permitted by law, indemnify and hold harmless the Foundationeach Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), its officers and directors, officers, stockholders, affiliates, employees, representatives and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out agents of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoingthem, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, person who controls any such underwriter (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, reasonable 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 this Section 11 for the Securities Act, the 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; provided, however, that the Company will not be liable to the extent that (1) 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 Holder in accordance with Section 4(a) of this Agreement for use in such registration statement, or (or action or proceeding 2) in respect thereof) or expense that arises out the case of an a sale directly by such Holder (including a sale of Registrable Securities through any underwriter retained by such Holder to engage in a distribution solely on behalf of such Holder), such untrue statement or alleged untrue statement or omission or alleged omission was contained in the a preliminary Prospectus if the Foundationprospectus and corrected in a final or amended prospectus, or other Person on behalf of the Foundation, and such Holder failed to send or deliver a copy of a the final Prospectus to the Person asserting the claim or amended prospectus at or prior to the written confirmation of the sale of the Registrable Securities to the Person asserting any such Person and loss, claim, damage or liability in any case where such delivery is required by the Securities Act or any state securities laws, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law. With respect to such untrue statement or omission was corrected or alleged untrue statement or omission in such final Prospectus and the information furnished in writing to the Company had previously and timely furnished sufficient copies thereof to the Foundation by or on behalf of such Holder in accordance with Section 4(a) of this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests Agreement for use in the Registration Statement relating to such registration or the related Prospectus statement, such Holder will severally and agrees to not jointly indemnify and hold harmless the CompanyCompany (including its directors, any underwriterofficers, employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such party's officers partners) and directors directors, officers, employees, representatives and agents of any of them, and each Person person who controls each such party (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities reasonable expenses and expenses liabilities, joint or several (including any reasonable attorneys' fees investigation, legal and expenses) other expenses incurred by each such party pursuant to in connection with, and any actual or threatened amount paid in settlement of, any action, suit, suit or proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statementclaim asserted, any Prospectus or preliminary Prospectusas the same are incurred), to which they, or any amendment or supplement to any of them, may become subject under the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)Securities Act, the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Exchange Act or Section 20 of other federal or state statutory law or regulation, at common law or otherwise, provided, however, that the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to Holder contained in this Section 11 except 5(a) shall not apply to the extent the indemnifying party shall have been actually prejudiced as a result amounts paid in settlement of such failure). In case any such loss, claim, damage, liability or action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to if such indemnified party (who shall not, except with settlement is effected without the consent of the indemnified partyHolder, be counsel to the indemnifying 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld; and provided, further, that, in no event shall any indemnity under this Section 5(a) exceed the net proceeds from the offering received by such Holder, except in the case of each indemnifying partyfraud or willful misconduct by such Holder.
(db) If the indemnification from the indemnifying party provided for in this Section 11 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, expenses or liabilities or expenses referred to therein, then the each indemnifying partyparty under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the other Holders from the offering of the Registrable 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 indemnifying party Company and indemnified party the other Holders in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and expensesexpenses or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Holders shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and the Holders, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of such indemnifying party the Company and indemnified party the Holders shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, such indemnifying party by or indemnified party, on behalf of the Company or the Holders and the parties' ’ relative intent, knowledge, knowledge and access to information and opportunity to correct or prevent such actioninformation. The amount paid or payable by a party as a result of Company and the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto Holders agree that it would not be just and equitable if contribution pursuant to this Section 11(d5(b) 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 above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No Person 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 person who was not found guilty of such fraudulent misrepresentation. If indemnification is available under .
(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 115 shall be deemed to include, subject to the indemnifying parties shall indemnify each limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party to the fullest extent provided in Section 11(a) connection with investigating or (b) hereofdefending any such action or claim, payable as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration same are incurred. The indemnification and contribution provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall 5 will remain in full force and effect irrespective regardless of any investigation made by or on behalf of an the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld. Any indemnified party that proposes to assert the right to be indemnified under this Section 5 will, promptly after receipt of notice of commencement or threat of any claim or action against such party in respect of which a claim is to be made against an indemnifying party under this Section 5 notify the indemnifying party in writing (such written notice, an “Indemnification Notice”) of the commencement or threat of such action, enclosing a copy of all papers served or notices received (if applicable), but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to any indemnified party under the foregoing provisions of this Section 5 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. The indemnified party will have the right to retain its own counsel in any such action if (i) the employment of counsel by the indemnified party has been authorized by the indemnifying party, (ii) the indemnified party’s counsel, shall have reasonably concluded that there is a reasonable likelihood of a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of such action or (iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action within a reasonable period of time following its receipt of the Indemnification Notice, in each of which cases the fees and expenses of the indemnified party’s separate counsel shall be at the expense of the indemnifying party; provided, however, that the indemnified party shall agree to repay any expenses so advanced hereunder if it is ultimately determined by a court of competent jurisdiction that the indemnified party to whom such expenses are advanced is not entitled to be indemnified; and provided, further, that so long as such the indemnified party is not guilty has reasonably concluded that no conflict of acting in a fraudulentinterest exists, reckless or grossly negligent mannerthe indemnifying party may assume the defense of any action hereunder with counsel reasonably satisfactory to the indemnified party.
(d) In the event of an underwritten offering of Registrable Securities under this Agreement, the Company shall enter into standard indemnification and underwriting agreements with the underwriter thereof.
Appears in 2 contracts
Sources: Joint Venture Agreement (Winwin Gaming Inc), Registration Rights Agreement (Winwin Gaming Inc)
Indemnification; Contribution. (a) The Company shall In connection with any registration of Registrable Securities pursuant to this Article III, Parent agrees to indemnify and hold harmless harmless, to the Foundationfullest extent permitted by Law, each of the Investors and their respective Affiliates, the Investors’ Representative and each of its officers Affiliates, and each Person who controls an Investor or the Investors’ Representative within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and the directors, officers, employees, partners, affiliates, members, managers, trustees, shareholders, assignees and representatives of each of the foregoing (collectively, the “Indemnified Persons”) from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities liabilities, judgments, actions and expenses (including reasonable attorneys' ’ fees and expenses) other expenses actually incurred by them in connection with investigating, defending or settling any such party pursuant to any actual losses, claims, damages, liabilities, actions or threatened action, suit, proceeding proceedings) (“Losses”) joint or investigation several arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any part of any Registration Statement, any Prospectus preliminary or preliminary Prospectusfinal prospectus or other disclosure document used in connection with the Registrable Securities, any Issuer FWP or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any violation or alleged violation by Parent or any of its Subsidiaries of any federal, state, foreign or common law rule or regulation applicable to Parent or any of its Subsidiaries and relating to action or inaction in the case of a Prospectus connection with any such registration, Registration Statement, other disclosure document or a preliminary ProspectusIssuer FWP; provided, in light of the circumstances then existing) however, that Parent will not misleadingbe required to indemnify any Indemnified Person for any losses, except in each case insofar as the same arise out of claims, damages, liabilities, judgments, actions or are based upon, expenses resulting from any such untrue statement or omission if such untrue statement or omission was made in reliance on and in conformity with information with respect to the Foundation such Indemnified Person or related Investors furnished to the Company Parent in writing by the Foundation or its counsel on behalf of such related Investors expressly for use therein. .
(b) In connection with any Registration Statement, preliminary or final prospectus, or Issuer FWP, in which an Underwritten OfferingInvestor is participating, the Company shall indemnify the underwriters thereofeach such Investor agrees to indemnify, their officersseverally and not jointly, directors and agents Parent, its Directors, its officers who sign such Registration Statement and each Person Person, if any, who controls such underwriters Parent (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from Parent to the Investors, but only with respect to information with respect to such Investor furnished to Parent in writing by such Investor expressly for use in such Registration Statement, preliminary or final prospectus, or Issuer FWP to the indemnification extent such information is included therein in reliance upon and in conformity with the information furnished to Parent by such Investor expressly for use therein; provided, however, that in no event shall any Investor’s liability pursuant to this Section 2.08 in respect of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable offering to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any which such loss, claim, damagedamages, liability (liabilities, judgments, actions or action or proceeding in respect thereof) or expense that arises out of expenses relate exceed an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus amount equal to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities proceeds to such Person Investor (after deduction of all Underwriters’ discounts and commissions) from such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and offering less the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to damages which such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact Investor has otherwise been required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter pay by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion reason of such untrue statement or omission in the Registration Statementinformation.
(c) Any In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party in respect of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party indemnity may claim indemnification or contribution be sought pursuant to this Section 11 2.08(a) or Section 2.08(b), such Person (provided hereinafter called the “indemnified party”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing; provided, however, that the failure to give such notification notice shall not affect the obligations of relieve the indemnifying party of its obligations pursuant to this Section 11 Agreement except to the extent such indemnifying party has been prejudiced in any material respect by such failure and (ii) permit the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofof such claim, action or proceeding with counsel reasonably satisfactory to the indemnified party to represent the indemnified party (in which case, indemnifying party shall pay the fees and disbursements of such counsel related to such claim, action or proceeding). In any such claim, action or proceeding, any indemnified party will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such indemnified party (who shall without prejudice to such indemnified party’s indemnity and other rights under the Charter, Bylaws and applicable Law, if any) unless (A) the indemnifying party and the indemnified party have mutually agreed to the retention of such counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel, with a copy provided to Parent, that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them, (C) the indemnifying party has failed to assume the defense of such claim and employ counsel reasonably satisfactory to the indemnified party, or (D) any such, claim, action or proceeding is a criminal or regulatory enforcement action. It is understood that the indemnifying party will not, except in connection with any claim, action or proceeding or related claims, actions or proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the indemnified parties (in addition to any local counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (D) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final non-appealable 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 will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 2.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party has not reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such effect any settlement of any pending or threatened proceeding (i) in respect of which any indemnified party of its election so to assume the defense thereof, the indemnifying is or could have been a party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred and indemnity could have been sought hereunder by such indemnified party, in connection with the defense thereof other than reasonable costs unless such settlement includes an unconditional release of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of from all liability on claims that are the defense subject matter of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, proceeding or (ii) which involves the actual or potential defendants in, or targets of, any such action include both imposition of equitable remedies on the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if imposition of any obligation on the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by other than as a majority in interest result of the indemnified parties shall be borne by the indemnifying party and the fees and expenses imposition of all other counsel retained by financial obligations for which the indemnified parties shall person will be paid by indemnified hereunder and provides for no admission of wrongdoing on the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partypart thereof.
(d) If the indemnification from the indemnifying party provided for in this Section 11 2.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities liabilities, judgments, actions or expenses referred to thereinin this Section 2.08, then the indemnifying party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and liabilities, judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of ▇▇▇▇▇▇, on the one hand, and the Investors, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall will be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall will be deemed to include, subject to the limitations set forth in Section 11(c) hereof2.08(c), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(e) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d2.08(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d2.08(d). No Person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of Section 2.08(d) and this Section 11(d2.08(e), no underwriter shall be required each Investor’s liability pursuant to contribute any amount Section 2.08(d) in excess respect of the offering to which such loss, claim, damages, liabilities, judgments, actions or expenses relate shall not exceed an amount by which the total price at which the Registrable Securities underwritten by it and distributed equal to the public were offered proceeds to the public exceeds such Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Each Investor’s obligation to contribute pursuant to this Section 2.08 is several in proportion to the respective number of Registrable Securities held by such Investor hereunder and not joint.
(f) For purposes of this Section 2.08, each Indemnified Person guilty of fraudulent misrepresentation (shall have the same rights to contribution as such Investor, and each officer, Director and Person, if any, who controls Parent within the meaning of Section 11(f15 of the Securities Act or Section 20(a) of the Securities Act) Exchange Act shall be have the same rights to contribution as Parent, subject in each case to the limitations set forth in the immediately preceding paragraph. 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 2.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any Person who obligation it or they may have under this Section 2.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any action or claim settled without its written consent; provided, however, that such written consent was not guilty of such fraudulent misrepresentation. unreasonably withheld.
(g) If indemnification is available under this Section 112.08, the indemnifying parties shall party will indemnify each indemnified party to the fullest full extent provided in Section 11(a2.08(a) or (band Section 2.08(b) hereof, as the case may be, without regard to the relative fault of such said indemnifying parties party or indemnified party or any other equitable consideration provided for in this Section 11(d2.08(d) or Section 2.08(e).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Investor Rights Agreement (Forward Air Corp), Investor Rights Agreement (Forward Air Corp)
Indemnification; Contribution. (a) The Company shall Each holder of Common Stock registered pursuant to this Agreement will indemnify and hold harmless the Foundation, its officers and directors, and Company against any agent or investment adviser thereof against all losses, claims, damagesdamages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementpreliminary prospectus, any Prospectus registration statement or preliminary Prospectusprospectus, or any amendment or supplement to any of the foregoingthereto, or (ii) any arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished extent, but only to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offeringextent, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls that (i) such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission was made in the any preliminary Prospectus if the Foundationprospectus, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such registration statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusprospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to any of the foregoingCompany by such holder expressly for use therein, or (ii) any omission you failed to deliver an amendment or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only supplement to the extent prospectus that any such untrue statement or omission is the Company made in reliance on and in conformity with information with respect available to you prior to the Foundation furnished applicable date of sale of Common Stock to which the Company or claim relates and that corrected any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue a preliminary prospectus, registration statement or omission in prospectus that forms the Registration Statementbasis for a claim against the Company.
(cb) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party of any written notice under Section 7(a) above of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may shall, if a claim indemnification or contribution pursuant in respect thereof is to this Section 11 (provided that failure to give such notification shall not affect the obligations of be made against the indemnifying party pursuant under either such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to this Section 11 except to the extent notify the indemnifying party shall not relieve it from any liability that it may otherwise have been actually prejudiced as a result of such failure)to any indemnified party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, thereof the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory thereof by notice in writing to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after . 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 under this Section 11 either of such subsections for any legal expenses of other counsel or any other expensesexpense, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding investigation incurred prior to the foregoingassumption by the indemnifying party, if (i) unless such expenses have been specifically authorized in writing by the indemnifying party, the indemnifying party shall not have employed counsel reasonably satisfactory has failed to such indemnified party to take charge of assume the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to and employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defensecounsel, or (ii) the actual or potential defendants in, or targets of, named parties to any such action include both the indemnified party and the indemnifying party party, as appropriate, and such indemnified party and has been advised by counsel that the representation of such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to and the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counselcounsel would be inappropriate due to actual or potential differing interests between them, could result in a conflict each of interest which cases the fees of counsel for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall will be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(dc) If the indemnification from the indemnifying party provided for in this Section 11 7 is unavailable or insufficient to hold harmless an indemnified party hereunder under Section 7(a) in respect of any losses, claims, damages, damages or liabilities (or expenses action in respect thereof) referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the holder or holders from this Agreement and from the offering of the shares of Common Stock. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the indemnifying party Company and indemnified party the holders in connection with the actions which statement or omissions that resulted in such losses, claims, damages, damages or liabilities and expenses(or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, such indemnifying party by the Company or indemnified party, the holder and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by a party as a result of Company and the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto holders agree that it would not be just and equitable if contribution pursuant to this Section 11(d7(c) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(dsubsection (c). Notwithstanding Except as provided in Section 7(b), the provisions amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 11(d), no underwriter 7(c) shall be required deemed to contribute include any amount legal or other expenses reasonably incurred by such indemnified party in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of connection with investigation or defending any damages which such underwriter has otherwise been required to pay by reason of such untrue action or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available Notwithstanding any provision in this Section 7(c) to the contrary, no holder shall be liable for any amount, in the aggregate, in excess of the net proceeds to such holder from the sale of such holder's shares (obtained upon exercise of Warrants) giving rise to such losses, claims, damages or liabilities.
(d) The obligations of the holders of Common Stock under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 7 shall be in addition to any liability which any party that such holders may otherwise have to any other party and shall survive any termination extend, upon the same terms and conditions to each person, if any, who controls the Company within the meaning of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerthe Act.
Appears in 2 contracts
Sources: Warrant Agreement (Commonwealth Biotechnologies Inc), Warrant Agreement (Commonwealth Biotechnologies Inc)
Indemnification; Contribution. (a) The If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the Foundation, its officers and directorsmeaning of the Securities Act, and each officer, director, partner, and employee of such Selling Holder and such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' ’ fees and expenses) disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any Registration Statement, any Prospectus preliminary prospectus or preliminary Prospectusfinal prospectus contained therein, or any amendment amendments or supplement to any of the foregoing, or supplements thereto; or
(ii) any The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (not misleading; provided, however, that the indemnification required by this Section 7.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the case of a Prospectus or a preliminary Prospectus, in light consent of the circumstances then existing) Company (which consent shall not misleadingbe unreasonably withheld), except nor shall the Company be liable in each any such case insofar as for any such loss, claim, damage, liability or expense to the same arise extent that it arises out of or are is based upon, any such untrue statement or omission made upon a Violation which occurs in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company by the Foundation or its counsel indemnified party expressly for use therein. In in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 shall not apply to any underwriter to the extent that any such loss is based on or arises out of an Underwritten Offeringuntrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the underwriters thereofdistribution, their officers, directors and directors, agents and employees and each Person person who controls such underwriters persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the FoundationSelling Holders.
7.2. Notwithstanding To the foregoing provisions extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of this Section 11(a)its directors, each of its officers who shall have signed the Company shall not be liable to the Foundationregistration statement, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other each Person, if any, who controls any such underwriter (the Company within the meaning of Section 15 of the Securities Act or Section 20 Act, any other Selling Holder, any controlling Person of the Exchange Act), under this Section 11 for any such lossother Selling Holder and each officer, claimdirector, damagepartner, liability (or action or proceeding in respect thereof) or expense that arises out and employee of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or such other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person Selling Holder and such statement or omission was corrected in such final Prospectus controlling Person, against any and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' ’ fees and expenses) disbursements and expenses of investigation, incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusViolation, in light of each case to the circumstances then existing) not misleading, but extent (and only to the extent extent) that any such untrue statement or omission is made Violation occurs in reliance on upon and in conformity with written information furnished by such Selling Holder expressly for use in connection with respect to such registration; provided, however, that (x) the Foundation furnished to the Company or any underwriter indemnification required by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the Foundation consent of the relevant Selling Holder of Registrable Securities, which consent shall not be liable to unreasonably withheld, and (y) in no event shall the Company, amount of any underwriter, each indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementSelling Holder.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party 7.3. Promptly after the receipt by such an indemnified party under this Section 7 of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 7, such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice of the commencement thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel reasonably satisfactory the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for 7 but shall not relieve the indemnifying party of any legal liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses of other counsel or any other expenses, in each case subsequently incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the right to employ separate counsel in connection with any such action, claim or proceeding and to participate in the defense thereof other than reasonable costs thereof, but the fees and expenses of investigation. Notwithstanding such counsel shall be the foregoing, if expenses of such indemnified party unless (i) the indemnifying party shall not have employed counsel reasonably satisfactory has agreed to pay such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, fees and expenses or (ii) the actual indemnifying party shall have failed to promptly assume the defense of such action, claim or potential defendants in, proceeding or targets of, (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both the indemnifying party and such indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it which are different from or additional in addition to those available to the indemnifying party which, if and that the indemnifying party and assertion of such indemnified party were to be represented by the same counsel, could result in defenses would create a conflict of interest for such that counsel or materially prejudice employed by the prosecution indemnifying party could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the defenses available indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, then it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party shall have the right a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to employ separate counselsuch action, claim or proceeding, in which case event the indemnifying party shall be obligated to pay the fees and expenses of one such additional counsel or firm counsels). No indemnifying party shall be liable to an indemnified party for any settlement of counsel (plus one local any action, proceeding or regulatory counsel or firm of counsel) selected by a majority in interest claim without the written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, which consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) 7.4. If the indemnification required by this Section 7 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 7:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof7.1 and Section 7.2, any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d7.4(i). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
7.5. If indemnification is available under this Section 117, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in this Section 11(a) or (b) hereof, as the case may be, 7 without regard to the relative fault of such indemnifying parties party or indemnified party or any other equitable consideration provided for referred to in Section 7.4.
7.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and 7 shall survive the completion of any termination offering of Registrable Securities pursuant to a registration statement under this Agreement. The indemnification provided by this Section 11 shall remain in full force , and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerotherwise.
Appears in 2 contracts
Sources: Investment Agreement (Gleacher & Company, Inc.), Investment Agreement (First Albany Companies Inc)
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article 4, the Company shall will indemnify and hold harmless the Foundationeach underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its officers partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any agent of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or investment adviser thereof Section 20 of the Exchange Act (a "Controlling Person"), from and against any and all losses, claims, damages, liabilities expenses and expenses liabilities, joint or several (including reasonable attorneys' fees any investigation, legal and expenses) other expenses incurred by such party pursuant to in connection with, and any actual or threatened amount paid in settlement of, any action, suit, suit or proceeding or investigation arising 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, insofar as such losses, claims, damages or liabilities arise out of or are based upon on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement, any Prospectus related preliminary or preliminary Prospectusdefinitive prospectus, or any amendment or supplement to any of the foregoingsuch registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) it not misleading, except in each case insofar as or (iii) any violation by the same arise out Company of or are based uponthe 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 with respect to the Foundation furnished in writing to the Company by the Foundation such underwriter, Selling Holder or its counsel Controlling Person expressly for use thereinin such registration statement. In connection with an Underwritten OfferingWith respect to such untrue statement or omission or alleged untrue statement or omission in 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 other underwriter, the Company shall indemnify the underwriters thereof(including its directors, their officers, directors employees, shareholders 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 person who controls such underwriters (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 as provided above with respect in the immediately preceding sentence. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 4.7(a) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the indemnification proportion of the Foundation. Notwithstanding total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or proceeds received by such Selling Holder from its sale of Registrable Securities under such registration statement.
(b) In the event the Company, any selling Holder or other person receives a complaint, claim or other notice of any other Personliability or action, if anygiving rise to a claim for indemnification under Section 4.7(a) above, who controls any the person claiming indemnification under such underwriter (within paragraph shall promptly notify the meaning person against whom indemnification is sought of Section 15 of such complaint, notice, claim or action, and such indemnifying person shall have the Securities Act or Section 20 of the Exchange Act), under this Section 11 for right to investigate and defend any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission action. No indemnifying person in the preliminary Prospectus if the Foundation, or other Person on behalf defense of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement claim or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)litigation, the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall notshall, except with the consent of the each indemnified partyperson, be counsel to the indemnifying 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without which does not include as an unconditional term thereof the consent (which consent, giving by the claimant or plaintiff to such indemnified person of a release from all liability in respect of such claim or litigation. The person claiming indemnification shall have the right to employ separate counsel in any such action and to participate in the case defense thereof but the fees and expenses of an action, suit, claim or proceeding exclusively seeking monetary relief, such counsel shall not be unreasonably withheld) at the expense of each the person against whom indemnification is sought (unless the indemnifying partyparty fails to promptly defend, in which case the fees and expenses of such separate counsel shall be borne by the person against whom indemnification is sought). In no event shall a person against whom indemnification is sought be obligated to indemnify any person for any settlement of any claim or action effected without the indemnifying person's prior written consent.
(dc) If the indemnification from the indemnifying party provided for in this Section 11 4.7(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, expenses or liabilities or expenses referred to therein, then the each indemnifying partyparty under this Section 4.7, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the other Selling Holders and the underwriters from the offering of the Registrable 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 indemnifying party Company, the other Selling Holders and indemnified party the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and expensesexpenses or liabilities, as well as any other relevant 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 cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of such indemnifying party the Company, the Selling Holders and indemnified party the underwriters shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied byby the Company, such indemnifying party the Selling Holders or indemnified party, the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(d4.7(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 above in this Section 11(d)the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d)In no event, no underwriter however, shall a Selling Holder be required to contribute any amount under this Section 4.7(c) in excess of the amount by which lesser of (i) that proportion of the total price at which of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities underwritten sold under such registration statement which are being sold by it and distributed to such Selling Holder or (ii) the public were offered to the public exceeds the amount proceeds received by such Selling Holder from its sale of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of under such untrue or alleged untrue statement or omission or alleged omissionregistration statement. No Person 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 person who was not found guilty of such fraudulent misrepresentation. If indemnification is available under .
(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 114.7 shall be deemed to include, subject to the indemnifying parties shall indemnify each limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party to the fullest extent provided in Section 11(a) connection with investigating or (b) hereofdefending any such action or claim, payable as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration same are incurred. The indemnification and contribution provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall 4.7 will remain in full force and effect irrespective regardless of any investigation made by or on behalf of an the indemnified partyparties or any officer, so long as such director, employee, agent or controlling person of the indemnified party is not guilty parties.
(e) The indemnification provided by this Section 4.7 shall be a continuing right to indemnification and shall survive the registration and sale of acting in a fraudulent, reckless any Registrable Securities by any person entitled to indemnification hereunder and the expiration or grossly negligent mannertermination of this Agreement.
Appears in 2 contracts
Sources: Stock Rights and Restrictions Agreement (Vermont Teddy Bear Co Inc), Stock Rights and Restrictions Agreement (Vermont Teddy Bear Co Inc)
Indemnification; Contribution. (a) The In connection with any registration of Registrable Securities pursuant to Section 3.01, Section 3.02 or Section 3.03 hereof, the Company shall agrees to indemnify and hold harmless harmless, to the Foundationfullest extent permitted by Law, Tengelmann, its Affiliates, directors, officers and directorsstockholders and each Person who controls Tengelmann within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities liabilities, judgments, actions and expenses (including reasonable attorneys' fees and expenses’ fees) incurred joint or several, caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any part of any Registration Statement, Statement or any Prospectus preliminary or preliminary Prospectusfinal prospectus used in connection with the Registrable Securities or any Issuer FWP, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectusprospectus, in the light of the circumstances then existingunder which they were made) not misleading; provided that the Company will not be required to indemnify any Indemnified Person for any losses, except in each case insofar as the same arise out of claims, damages, liabilities, judgments, actions or are based upon, expenses resulting from any such untrue statement or omission if such untrue statement or omission was made in reliance on and in conformity with information with respect to the Foundation any Indemnified Person furnished to the Company in writing by the Foundation or its counsel Tengelmann expressly for use therein. .
(b) In connection with an Underwritten Offeringany Registration Statement, preliminary or final prospectus, or Issuer FWP, Tengelmann agrees to indemnify the Company, its Directors, its officers who sign such Registration Statement and each Person, if any, who controls the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from the Company to Tengelmann, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation any Indemnified Person furnished to the Company in writing by Tengelmann expressly for use in such Registration Statement, preliminary or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)final prospectus, or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementIssuer FWP.
(c) Any In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party in respect of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party indemnity may claim indemnification or contribution be sought pursuant to this Section 11 3.08(a) or (b), such Person (hereinafter called the “indemnified party”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing; provided that the failure to give such notification notice shall not affect the obligations of relieve the indemnifying party of its obligations pursuant to this Section 11 Agreement except to the extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofof such claim, action or proceeding with counsel reasonably satisfactory to the indemnified party to represent the indemnified party and (iii) pay the fees and disbursements of such counsel related to such claim, action or proceeding. In any such claim, action or proceeding, any indemnified party will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such indemnified party (who shall without prejudice to such indemnified party’s indemnity and other rights under the Charter, By-Laws and applicable Law, if any) unless (A) the indemnifying party and the indemnified party have mutually agreed to the retention of such counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel, with a copy provided to the Company, that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them or (C) the indemnifying party has failed to assume the defense of such claim and employ counsel reasonably satisfactory to the indemnified party. It is understood that the indemnifying party will not, except in connection with any claim, action or proceeding or related claims, actions or proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be unreasonably withheld), but if such claim, action or proceeding is settled with such consent or if there has been 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 will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party will not have reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such effect any settlement of any pending or threatened proceeding in respect of which any indemnified party of its election so to assume the defense thereof, the indemnifying is or could have been a party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred and indemnity could have been sought hereunder by such indemnified party, in connection with the defense thereof other than reasonable costs unless such settlement includes an unconditional release of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of from all liability on claims that are the defense subject matter of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partyproceeding.
(d) If the indemnification from the indemnifying party provided for in this Section 11 3.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities liabilities, judgments, actions or expenses referred to thereinin this Section 3.08, then the indemnifying party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and liabilities, judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of the Company, on the one hand, and Tengelmann, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall will be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall will be deemed to include, subject to the limitations set forth in Section 11(c) hereof3.08(c), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(e) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d3.08(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d3.08(d). No Person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 11(d3.08(e), no underwriter Tengelmann shall not be required to contribute contribute, in the aggregate, any amount in excess of the amount by which the total price at which net proceeds received by Tengelmann with respect to the Registrable Securities underwritten exceed the greater of (A) the amount paid by it Tengelmann for its Registrable Securities and distributed to the public were offered to the public exceeds (B) the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation Tengelmann has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No .
(f) For purposes of this Section 3.08, each controlling Person guilty of fraudulent misrepresentation (Tengelmann shall have the same rights to contribution as Tengelmann, and each officer, Director and Person, if any, who controls the Company within the meaning of Section 11(f15 of the Securities Act or Section 20(a) of the Securities Act) Exchange Act shall be have the same rights to contribution as the Company, subject in each case to the limitations set forth in the immediately preceding paragraph. 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 3.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from who contribution may be sought from any Person who obligation it or they may have under this Section 3.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any action or claim settled without its written consent; provided, however, that such written consent was not guilty of such fraudulent misrepresentation. unreasonably withheld.
(g) If indemnification is available under this Section 113.08, the indemnifying parties shall party will indemnify each indemnified party to the fullest full extent provided in Section 11(aSections 3.08(a) or and (b) hereof, as the case may be, without regard to the relative fault of such said indemnifying parties party or indemnified party or any other equitable consideration provided for in this Section 11(d3.08(d) or (e).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Investment Agreement (Great Atlantic & Pacific Tea Co Inc), Stockholder Agreement (Great Atlantic & Pacific Tea Co Inc)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless harmless, to the Foundationfullest extent permitted by law, its officers the Holder in any offering or sale of Registrable Securities pursuant to this Agreement, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Securities, and each Person, if any, who controls the Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and any agent or investment adviser thereof affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees ’ fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) (collectively, “Losses”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon upon: (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, any Free Writing Prospectus or (ii) any omission “issuer information” filed or alleged omission to state therein a material fact required to be stated therein filed pursuant to Rule 433(d) under the Securities Act, or necessary to make the statements therein (in the case of a Prospectus or Prospectus, a preliminary Prospectus, a Free Writing Prospectus or “issuer information,” in the light of the circumstances then existing) not misleading, except in each case insofar as the same such statements or omissions arise out of or are based upon, upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to the Foundation Holder furnished in writing to the Company by the Foundation Holder or its counsel expressly for use therein. In , (B) the use of any Prospectus, Free Writing Prospectus or “issuer information” after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus, Free Writing Prospectus or “issuer information” after such time as the Company has advised the Holder that the filing of an amendment or supplement thereto is required, except such Prospectus, Free Writing Prospectus or “issuer information” as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with an Underwritten Offeringany such registration. Notwithstanding the foregoing provisions of this Section 2.10(a), the Company shall not be liable to the Holder or any underwriter or to any other indemnified party under the indemnity agreement in this Section 2.10(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either: (i) (A) the Holder or such underwriter failed to send or deliver a copy of the Prospectus prior to the time of the sale of Registrable Securities by the Holder or such underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission; or (ii) (A) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (B) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, the Holder or such underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, prior to the time of the sale of Registrable Securities by the Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party.
(b) In connection with any Registration Statement filed pursuant to this Agreement, the Holder shall indemnify and hold harmless, to the underwriters thereoffullest extent permitted by law, their officersthe Company, directors each Person, if any, who participates as an underwriter in any such offering and agents sale of Registrable Securities and each Person Person, if any, who controls the Company or such underwriters (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof their respective directors, trustees, officers, partners, agents, employees and affiliates, against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) Losses incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, any Free Writing Prospectus or (ii) any omission “issuer information” filed or alleged omission to state therein a material fact required to be stated therein filed pursuant to Rule 433(d) under the Securities Act, or necessary to make the statements therein (in the case of a Prospectus, preliminary Prospectus or a preliminary Free Writing Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation Holder furnished in writing to the Company or any underwriter by the Foundation Holder or its counsel specifically for inclusion use therein. Notwithstanding , provided that the foregoing provisions of this Section 13(b), the Foundation Holder shall not be liable required to indemnify the Company, any underwriter, each such parties' officers Company or directors, any other Person who controls indemnified party under this Section 2.10(b) with respect to any such party (within the meaning of Section 15 amount in excess of the Securities Act or Section 20 amount of the Exchange Act), or any agent or investment advisor thereof, if total net proceeds received by the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent Holder from sales of the inclusion of Registrable Securities under such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 2.10 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to unless in the reasonable satisfaction judgment of any indemnified party, based on the indemnified party its ability opinion of counsel, a conflict of interest is likely to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both exist between the indemnifying party and such indemnified party and any other of such indemnified party shall have reasonably concluded that there may be legal defenses available parties with respect to it such claim, in which are different from or additional to those available to event the indemnifying party which, if the indemnifying party and such indemnified party were to shall not be represented by the same counsel, could result in a conflict of interest liable for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of (i) more than one counsel or firm of counsel for the Holder (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties which selection shall be borne by reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party and who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel retained for the Holder (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified parties shall be paid party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnified partiesindemnity obligations set forth in this Section 2.10. No indemnified party shall consent to entry of any judgment or enter entry into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 2.10 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to thereinLosses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expensesLosses, as well as any other relevant equitable considerations, provided that the Holder shall not be required to contribute any amount in excess of the amount of the total net proceeds received by the Holder from sales of the Registrable Securities under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other thingsmatters, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof2.10(c), any legal and or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 2.10(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 2.10(d). If indemnification is available under this Section 112.10, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in Section 11(a2.10(a) or (b) hereof2.10(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d2.10(d).
(e) The provisions of this Section 11 2.10 shall be in addition to any liability which any indemnifying party may have to any other indemnified party and shall survive any the termination of this Agreement. .
(f) The indemnification provided and contribution required by this Section 11 2.10 shall remain in full force and effect irrespective be made by periodic payments of the amount thereof during the course of any investigation made by action, suit, proceeding or on behalf of an indemnified partyinvestigation, so long as such indemnified party is not guilty of acting in a fraudulent, reckless and when invoices are received or grossly negligent mannerLosses are incurred.
Appears in 2 contracts
Sources: Registration Rights and Governance Agreement (Advisory Board Co), Stock Purchase Agreement (Advisory Board Co)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless the Foundationeach Holder, its respective officers and directors, and each person, if any, who controls such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and any agent agents, representatives or investment adviser advisers thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensesexpenses and reasonable costs of investigation) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or (iii) any violation or alleged violation by the Company of any United States federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with written information with respect to the Foundation a Holder furnished to the Company by the Foundation such Holder or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundationeach Holder. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundationany Holder, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundationa Holder, or other Person on behalf of the Foundationsuch Holder, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation Holders in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually materially prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(dc) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions or omissions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied (in writing, in the case of a Holder) by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionaction or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c11(b) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d11(c) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d11(c). Any underwriter's obligations in this Section 11(c) to contribute shall be several in proportion to the number of Registrable Securities underwritten by them and not joint. Notwithstanding the provisions of this Section 11(d11(c), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, hereof without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d11(c).
(ed) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall survive the transfer of such Registrable Securities by the Holder and shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Registration Rights Agreement (Wellchoice Inc), Registration Rights Agreement (Wellchoice Inc)
Indemnification; Contribution. (a) The Company shall EchoStar shall, and it hereby agrees to, indemnify and hold harmless the FoundationInvestors and their respective directors, officers, employees, Affiliates and controlling Persons, if any, and each underwriter, its officers and partners, directors, officers, employees and controlling Persons, if any, in any agent offering or investment adviser thereof sale of the Registrable Securities, against all any losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of EchoStar as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, or any Prospectus preliminary or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement thereto, any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and EchoStar shall, and it hereby agrees to, reimburse periodically the Investors or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such Claims; provided, however, that EchoStar shall not be liable to any such Person in any such case to the extent that any such Claims arise out of the foregoingor are based upon an untrue statement or alleged untrue statement or omission or alleged omission made (i) in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to EchoStar by the Investors expressly for use therein, (ii) in any prospectus used after such time as EchoStar advised such Investor in writing that the filing of a post-effective amendment or supplement thereto was required, other than such prospectus as so amended or supplemented or (iii) in any prospectus used after such time as the obligation of EchoStar to keep such prospectus effective and current shall have expired.
(b) The Investors shall, and hereby agrees to, indemnify and hold harmless EchoStar, its directors, officers, employees, Affiliates and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Securities, against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement effected with the consent of the Investors as provided herein), or actions or proceedings in *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company or any underwriter EchoStar by the Foundation Investors expressly for use therein, and periodically reimburse such indemnified Person for any legal or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each other out-of-pocket expenses reasonably incurred by such parties' officers indemnified Person in connection with investigating or directors, any other Person who controls defending any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementClaim.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under Section 4.4(a) or Section 4.4(b) of any written notice of the commencement of any action, suit, action or proceeding or investigation or threat thereof made in writing for which indemnification under Section 4.4(a) or Section 4.4(b) may be requested, such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give shall notify such notification shall not affect the obligations indemnifying party in writing of the indemnifying party pursuant commencement of such action or proceeding; but the omission to this Section 11 except to the extent so notify the indemnifying party shall not relieve it from any liability which it may have been actually prejudiced as a result to any indemnified party in respect of such failure)action or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and in no event shall such omission relieve the indemnifying party from any other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party and it shall notify the an indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party)and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing; provided, if however, that (i) if the indemnifying party shall not have employed counsel reasonably satisfactory fails to such indemnified party to take charge of promptly assume and control the defense of such action within a reasonable time after notice of commencement of such action or proceeding; (so long as such failure to employ counsel is not the result of an unreasonable determination by ii) if such indemnified party who is a defendant in any action or proceeding that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if also brought against the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party reasonably shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party that are not available to the indemnifying party; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then then, in any such case, the indemnified party shall have the right to employ separate assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction) and the indemnifying party shall be liable for any expenses therefor (including, without limitation, any such counsel’s reasonable fees). If the indemnifying party is not entitled to, in which case or elects not to, assume the defense of a claim, it will not be obligated to pay the fees and expenses of more than one counsel or firm of counsel (plus and one local counsel per jurisdiction) for each indemnified party with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld or regulatory counsel or firm of counsel) selected by a majority in interest delayed. No indemnifying party shall, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, compromise or consent to entry of any judgment or enter into *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. any settlement without agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 4.4(a) or Section 4.4(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent (which consent, or settlement includes an unconditional release of the indemnified party from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relieflitigation, shall does not be unreasonably withheld) subject the indemnified party to any material injunctive relief or other material equitable remedy and does not include a statement or admission of each indemnifying fault, culpability or a failure to act, by or on behalf of the indemnified party.
(d) If The Investors and EchoStar agree that if, for any reason, the indemnification from the indemnifying party provided for in provisions contemplated by Sections 4.4(a) or 4.4(b) of this Section 11 is Agreement are unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of of, the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with the actions which resulted in respect to such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsoffering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the second preceding sentence is not permitted by Applicable Law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d4.4(d) were to be determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d4.4(d), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount limitations set forth in Section 4.4(c) of this Agreement) any damages which legal or other fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities ActAct or any successor provision thereof) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Investor Rights Agreement (EchoStar CORP), Investor Rights Agreement (DISH Network CORP)
Indemnification; Contribution. (a) The Company shall shall, and it hereby agrees to, indemnify and hold harmless the FoundationStockholder and its controlling Persons, its officers and directorsif any, and each underwriter and its controlling Persons, if any, in any agent offering or investment adviser thereof sale of the Registrable Shares, against all any losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of the Company as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, or any Prospectus preliminary or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse periodically the Stockholder or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon information furnished to the Company by the Stockholder, any underwriter or any Representative of the foregoingStockholder, expressly for use therein, or by the Stockholder’s failure to furnish the Company, upon request, with the information with respect to the Stockholder, or any underwriter or Representative of the Stockholder, or the Stockholder’s intended method of distribution, that is the subject of the untrue statement or omission.
(iib) The Stockholder shall, and hereby agrees to, (i) indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Shares against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company or any underwriter by the Foundation Stockholder expressly for use therein, and (ii) reimburse the Company for any legal or its counsel specifically for inclusion therein. Notwithstanding other out-of-pocket expenses reasonably incurred by the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers Company in connection with investigating or directors, any other Person who controls defending any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementClaim.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to The Stockholder and the indemnifying party after the receipt by such indemnified party of Company agree that if, for any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofreason, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this indemnification provisions contemplated by Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory6.6(a) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii6.6(b) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with respect to the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsapplicable offering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 6.6(c) is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d6.6(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d6.6(c), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 6.7) any damages which legal or other fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Stockholder Agreement (At&t Inc.)
Indemnification; Contribution. (a) The If any Media Magic Shares are included in a registration statement under this Agreement:
5.1 To the extent permitted by applicable law, the Company shall indemnify and hold harmless the FoundationMedia Magic and each Media Magic Shareholder, its officers against any and directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and expenses) disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any Registration Statement, any Prospectus preliminary prospectus or preliminary Prospectusfinal prospectus contained therein, or any amendment amendments or supplement to any of the foregoing, or supplements thereto;
(ii) any The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading; or
(in iii) Any violation or alleged violation by the case of a Prospectus or a preliminary Prospectus, in light Company of the circumstances then existing) Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 5.1 shall not misleadingapply to amounts paid in settlement of any such loss, except claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in each any such case insofar as for any such loss, claim, damage, liability or expense to the same arise extent that it arises out of or are is based upon, any such untrue statement or omission made upon a Violation which occurs in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company by the Foundation or its counsel indemnified party expressly for use therein. In in connection with an Underwritten Offering, the such registration. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the underwriters thereofdistribution, their officers, directors and directors, agents and employees and each Person person who controls such underwriters persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding Media Magic Shareholders.
5.2 To the foregoing provisions extent permitted by applicable law, Media Magic and each Media Magic Shareholder shall indemnify and hold harmless the Company, each of this Section 11(a)its directors, each of its officers who shall have signed the Company shall not be liable to the Foundationregistration statement, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other each Person, if any, who controls any such underwriter (the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for against any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and expenses) disbursements and expenses of investigation, incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusViolation, in light of each case to the circumstances then existing) not misleading, but extent (and only to the extent extent) that any such untrue statement or omission is made Violation occurs in reliance on upon and in conformity with written information with respect to furnished by such Selling Holder expressly for use in the Foundation furnished to registration statement; provided, however, that (x) the Company or any underwriter indemnification required by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)5.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the Foundation consent of Media Magic or the relevant Media Magic Shareholder, which consent shall not be liable to unreasonably withheld, and (y) in no event shall the Company, amount of any underwriter, each indemnity under this Section 5.2 exceed the gross proceeds from the applicable offering received by such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementSelling Holder.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party 5.3 Promptly after the receipt by such an indemnified party under this Section 5 of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 5, such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice of the commencement thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel reasonably satisfactory the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. Any fees and expenses incurred by the indemnified party (who including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall not, except with the consent of be paid to the indemnified party, be counsel as incurred, within thirty (30) days of written notice thereof to the indemnifying party), and after notice from the indemnifying party to . Any such indemnified party of its election so shall have the right to assume employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the indemnifying party fees and expenses of such counsel shall not be liable to the expenses of such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory failed to such indemnified party to take charge of promptly assume the defense of such action within a reasonable time after notice of commencement of action, claim or proceeding or (iii) the named parties to any such action action, claim or proceeding (so long as such failure to employ counsel is not the result of an unreasonable determination by including any impleaded parties) include both such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if and the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defenseparty, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it which are different from or additional in addition to those available to the indemnifying party which, if and that the indemnifying party and assertion of such indemnified party were to be represented by the same counsel, could result in defenses would create a conflict of interest for such that counsel or materially prejudice employed by the prosecution indemnifying party could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the defenses available indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, then it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party shall have the right a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to employ separate counselsuch action, claim or proceeding, in which case event the indemnifying party shall be obligated to pay the fees and expenses of one such additional counsel or firm counsels). No indemnifying party shall be liable to an indemnified party for any settlement of counsel (plus one local any action, proceeding or regulatory counsel or firm of counsel) selected by a majority in interest claim without the written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, which consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) 5.4 If the indemnification required by this Section 5 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 5:
(a) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof5.1 and Section 5.2, any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(b) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) 5.4 were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d5.4(a). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. .
5.5 If indemnification is available under this Section 115, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in this Section 11(a) or (b) hereof, as the case may be, 5 without regard to the relative fault of such indemnifying parties party or indemnified party or any other equitable consideration provided for referred to in Section 5.4.
5.6 The obligations of the Company, Media Magic and the Media Magic Shareholders under this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and 5 shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective the completion of any investigation made by offering of Media Magic Shares pursuant to a registration statement under this Agreement or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Cirilium Holdings Inc)
Indemnification; Contribution. (ai) The Company shall Big shall, notwithstanding termination of this Agreement and without limitation as to time, indemnify and hold harmless harmless, each Qualified Holder of Registrable Securities, the Foundationofficers, its officers and directors, partners, agents, investment advisors and employees of each of them, each Person who controls any agent such Qualified Holder (within the meaning of Section 15 of the Securities Act or investment adviser thereof Section 20 of the Exchange Act) and the officers, directors, partners, agents and employees of each such controlling Person, to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and liabilities, costs (including, without limitation, legal or other expenses (including reasonable attorneys' fees reasonably incurred in connection with investigating or preparing to defend or defending against or appearing as a third party witness in connection therewith) and expenses) incurred by such party pursuant to any actual or threatened action, suitincluding expenses of investigation (collectively, proceeding or investigation "Losses"), as incurred, arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, any Prospectus prospectus or preliminary Prospectus, form of prospectus or in any amendment or supplement to thereto or in any of the foregoingpreliminary prospectus, or (ii) arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus any prospectus or a preliminary Prospectusform of prospectus or supplement thereto, in light of the circumstances then existingunder which they were made) not misleading, except in each case insofar as to the same arise out of or are based upon, any such extent that (a) the untrue statement or omission made in reliance the form of a preliminary prospectus was corrected in the final prospectus or (b) such are based upon information regarding such Qualified Holder furnished in writing to Big by or on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel behalf of such Qualified Holder expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) therein to the same extent as provided above with respect that such information was reasonably relied on by Big in the preparation thereof. The obligations of Big to each Indemnified Party shall be separate obligations, and the indemnification liability of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company Big to any Indemnified Party hereunder shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or extinguished solely because any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed Indemnified Party is not entitled to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementindemnity hereunder.
(bii) In connection with any registration statement in which a Qualified Holder of Registrable Securities pursuant to this Agreementis participating, the Foundation such Qualified Holder of Registrable Securities shall furnish to the Company and any underwriter Big in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, information as the Company or any underwriter Big reasonably requests for use in the Registration Statement relating to such connection with any registration statement or the related Prospectus prospectus and agrees each Qualified Holder agrees, severally and not jointly, to indemnify and hold harmless the CompanyBig, any underwriterits directors, each such party's officers officers, agents and directors and employees, each Person who controls each such party Big (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent the directors, officers, agents or investment adviser thereof employees of each such controlling Person, to the fullest extent lawful, from and against all losses, claims, damages, liabilities and expenses Losses (including reasonable attorneys' fees and expensesas determined by a court of competent jurisdiction in a final judgment not subject to appeal or review) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, any Prospectus or preliminary Prospectusprospectus, or any amendment or supplement to any form of the foregoingprospectus, or (ii) arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in not misleading to the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleadingextent, but only to the extent extent, that any such untrue statement or omission is made contained in reliance on any information so furnished in writing by such Qualified Holder to Big expressly for use in such registration statement or prospectus and that such information was reasonably relied upon by Big in conformity with information with respect to preparation of such registration statement, prospectus or form of prospectus. In no event shall the Foundation furnished to liability of any selling Qualified Holder of Registrable Securities hereunder be greater in amount than the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 dollar amount of the Securities Act or Section 20 proceeds received by such Qualified Holder upon the sale of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient Registrable Securities giving rise to prevent the inclusion of such untrue statement or omission in the Registration Statementindemnification obligation.
(ciii) Any If any Proceeding shall be brought or asserted against any Person entitled to indemnification indemnity hereunder agrees (an "Indemnified Party"), such Indemnified Party promptly shall so notify the Person from whom indemnity is sought (the "Indemnifying Party") in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection therewith; provided, that the failure of any Indemnified Party to give prompt written such notice to shall not relieve the indemnifying party after the receipt by such indemnified party Indemnifying Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution its obligations pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 2(e), except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, be finally determined by a court of competent jurisdiction (which determination is not subject to assume review or appeal) that such failure shall have materially prejudiced 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)Indemnifying Party, and after provided further, that such failure to give 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 relieve the Indemnifying Party from any liability which it may have otherwise than under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by 2(e). Any such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party Indemnified Party shall have the right to employ separate counselcounsel in any such action, claim or proceeding and to participate in which case the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (i) the Indemnifying Party has agreed to pay such fees and expenses; or (ii) the Indemnifying Parties shall have failed promptly to assume the defense of such action, claim or proceeding and to employ counsel reasonably satisfactory to such Indemnified Party or Parties in any such action, claim or proceeding; or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such Indemnified Party or Parties and one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest more of the indemnified parties Indemnifying Parties, and such Indemnified Parties shall have been advised in writing by counsel to the Indemnifying Party or Parties that a conflict of interest may exist if such counsel represents such Indemnified Party or Parties and one or more of the Indemnifying Parties (in which case, if any such Indemnified Party notifies the Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the Indemnifying Parties, the Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be borne by at the indemnifying party and expense of the Indemnifying Parties), it being understood, however, that, the Indemnifying Parties shall not, in connection with any one such action 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 fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all other counsel retained such Indemnified Parties, which firm shall be designated in writing by the indemnified parties Indemnified Parties. No Indemnifying Party shall be liable for any settlement of any such Proceeding made without its written consent. No Indemnifying Party shall, without the prior written consent of each Indemnified Party, effect any settlement of any proceeding unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are or may be the subject matter of such proceeding. All fees and expenses of each Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such action or proceeding in a manner not inconsistent with this Section 2(e) shall be paid by to such Indemnified Party, as incurred, upon written notice thereof to the indemnified parties. No indemnified party shall consent Indemnifying Parties (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partyindemnification hereunder).
(div) If a claim by an Indemnified Party for indemnification under Section 2(e)(i) or 2(e)(ii) hereof is found unenforceable in a final judgment by a court of competent jurisdiction (not subject to further appeal or review) even though the express provisions hereof provide for indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to thereinsuch case, then the indemnifying partyeach applicable Indemnifying Party, in lieu of this Section 2(e) indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities and expenses Losses in such proportion as is appropriate to reflect the relative fault of each Indemnifying Party and the indemnifying party and indemnified party Indemnified Party in connection with the actions which actions, statements or omissions that resulted in such losses, claims, damages, liabilities and expenses, Losses as well as any other relevant equitable considerations. The relative fault of each such indemnifying party Indemnifying Party and indemnified party the Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state of a material fact, has been taken or made by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in Section 11(c2(e)(iii) hereof, any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceedingProceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d2(e)(iv) were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d)the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d2(e)(iv), no underwriter shall be required to contribute any amount in excess an Indemnifying Party that is a Qualified Holder of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of securities sold by such Indemnifying Party and distributed to the Foundation public were offered to the public exceeds the amount of any damages which the Foundation that such Indemnifying Party 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(f10(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, each of the Trust and the Corporation, severally and not jointly, shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the Foundationmeaning of the Securities Act, its officers and directors, and any each Person who participates as a sales or placement agent or investment adviser thereof underwriter in any offering of the Registered Securities and each officer, director, partner and employee of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and expensesdisbursements and reasonable expenses of investigation, incurred by such party or to which such party may become subject pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary Prospectus or final Prospectus contained therein, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; provided, however, that the indemnification required by this Section 7.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected by the indemnified person without the consent of the Trust or the Corporation (which consent shall not be unreasonably withheld), nor shall the Trust or the Corporation be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with information furnished to the Trust or the Corporation by the indemnified party expressly for use in connection with such registration; and provided further that the indemnity agreement contained in this Section 7 shall not apply to the extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, contained in or omitted from any preliminary Prospectus if the final Prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final Prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if an underwriter, placement agent or Selling Holder was under an obligation to deliver such final Prospectus and failed to do so.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Trust, the Corporation, each of the Trustees of the Trust, each of the directors of the Corporation, each of the officers of the Trust or the Corporation who shall have signed the registration statement, each Person, if any, who controls the Trust or the Corporation within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusinvestigation, or any amendment or supplement to which any of the foregoingforegoing Persons may otherwise become subject under the Securities Act, the Exchange Act or (ii) any omission other federal or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectuslaws, in light of the circumstances then existing) not misleading, except in each case but only insofar as the same such losses, claims, damages, liabilities and expenses arise out of or are based uponupon any Violation, any in each case to the extent that, but only to the extent that, such untrue statement Violation arises out of or omission is based upon and was made in reliance on and in conformity with upon information with respect to the Foundation furnished to the Company by the Foundation or its counsel such Selling Holder expressly for use therein. In in connection with an Underwritten Offeringsuch registration; provided, the Company shall indemnify the underwriters thereofhowever, their officers, directors and agents and each Person who controls such underwriters that (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Actx) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of required by this Section 11(a), the Company 7.2 shall not be liable apply to the Foundation, any Person who participates as an underwriter amounts paid in the offering or sale settlement of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability or expense if such settlement (or A) is effected without the consent of the relevant Selling Holder (which consent shall not be unreasonably withheld), (B) does not include an unconditional release of the indemnified party from all liability arising out of such action or proceeding in respect thereofclaim or (C) or expense that arises out of an untrue includes a statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundationas to, or other Person an admission of, fault, culpability or a failure to act, by or on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person any indemnified party and such statement or omission was corrected (y) in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation no event shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of indemnity under this Section 13(b), 7.2 exceed the Foundation shall not be liable to net proceeds from the Company, any underwriter, each applicable offering received by such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementSelling Holder.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party 7.3. Promptly after the receipt by such an indemnified party under this Section 7 of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 7, such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereof, thereof with nationally recognized counsel experienced in such matters reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel and to not have the indemnifying party assume its defense, with the fees, disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for 7 to the extent of such prejudice but shall not relieve the indemnifying party of any legal liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses of other counsel or any other expenses, in each case subsequently incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the right to employ separate counsel in connection with any such action, claim or proceeding and to participate in the defense thereof other than reasonable costs thereof, but the fees and expenses of investigation. Notwithstanding such counsel shall be the foregoing, if expenses of such indemnified party unless (i) the indemnifying party shall not have employed counsel reasonably satisfactory has agreed to pay such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, fees and expenses or (ii) the actual indemnifying party shall have failed to promptly assume the defense of such action, claim or potential defendants in, proceeding or targets of, (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and such indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it which are different from or additional in addition to those available to the indemnifying party which, if and that the indemnifying party and assertion of such indemnified party were to be represented by the same counsel, could result in defenses would create a conflict of interest for such that counsel or materially prejudice employed by the prosecution indemnifying party could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the defenses available indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, then it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party shall have the right a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to employ separate counselsuch action, claim or proceeding, in which case event the indemnifying party shall be obligated to pay the fees and expenses of one such additional counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partycounsels).
(d) 7.4. If the indemnification required by this Section 7 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 7:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof7.1 and Section 7.2, any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d7.4(i). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
7.5. If indemnification is available under this Section 117, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in this Section 11(a) or (b) hereof, as the case may be, 7 without regard to the relative fault of such indemnifying parties party or indemnified party or any other equitable consideration provided referred to in Section 7.4 except that no Selling Holder shall be liable for any amount in excess of the net proceeds it receives in the offering which is the subject of the indemnification proceeding.
7.6. The obligations of the Trust and the Corporation under this Section 11(d).
(e) The provisions of this Section 11 7 shall be in addition to any liability which any party the Trust and the Corporation may otherwise have to the persons specified in Section 7.1 and the obligations of the Selling Holders under this Section 7 shall be in addition to any other party liability which such Persons may otherwise have to the Trust and the Corporation. The remedies provided in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to an indemnified party at law or in equity.
7.7. The obligations of the Trust, the Corporation and the Selling Holders of Registrable Securities under this Section 7 shall survive the completion of any termination offering of Registrable Securities pursuant to a registration statement under this Agreement. The indemnification provided by this Section 11 shall remain in full force , and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Goldman Sachs Group Lp)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the Foundationoffering or sale of such securities, its officers (iii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a “controlling Person”), and (iv) the respective officers, directors, partners, employees, representatives and agents of any agent such Holder or investment adviser thereof underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an “indemnified Person”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and expenses liabilities, judgments or expenses, joint or several (including reasonable attorneys' fees and expensesor actions or proceedings, whether commenced or threatened, in respect thereof) incurred by (collectively, “Claims”), to which such party pursuant to any actual indemnified Person may become subject under either Section 15 of the Securities Act or threatened actionSection 20 of the Exchange Act or otherwise, suit, proceeding or investigation arising insofar as such Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Statement or Prospectus or preliminary Prospectus, (or any amendment or supplement to any of the foregoingthereto), or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except in each case insofar as the same arise out such losses, claims, damages, liabilities, judgments or expenses of or any such indemnified Person; (x) are based upon, caused by any such untrue statement or omission made or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in reliance writing to the Company by or on and in conformity with information behalf of any of such indemnified Person expressly for use therein; (y) with respect to the Foundation preliminary Prospectus, result from the fact that such Holder sold Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel, or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company’s prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the underwriters thereofwritten consent of the Company. The Company shall not, their officerswithout the prior written consent of each indemnified Person, directors settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and agents not jointly, to indemnify and each hold harmless the Company and its directors, officers and any Person who controls such underwriters controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each such Person, to the same extent as provided above the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the indemnification extent of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Persongross proceeds, if any, who controls received by such Holder from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as be brought against the Company or its directors or officers or any underwriter reasonably requests for use such controlling Person in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning respect of Section 15 which indemnity may be sought against a Holder of the Restricted Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred covered by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of such Holder shall have the foregoing, or rights and duties given the Company in Section 2.7(a) (ii) any omission or alleged omission to state therein a material fact except that the Holder may but shall not be required to be stated therein or necessary to make assume the statements therein (in the case of a Prospectus or a preliminary Prospectusdefense thereof), in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation its directors or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other such controlling Person who controls any such party (within shall have the meaning of rights and duties given to each Holder by Section 15 of the Securities Act or Section 20 of the Exchange Act2.7(a), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 2.7 is unavailable to an indemnified party hereunder under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the indemnifying partycase of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 Company and indemnified party such Holder in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such indemnifying party and indemnified party Holder on the other shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company or by such indemnifying party or indemnified party, Holder and the parties' parties relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 11(c) hereof2.7(a), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation action or proceedingclaim. The parties hereto Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 11(d2.7(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d)the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d2.7(c), no underwriter Holder (and none of its related indemnified Persons) shall be required to contribute contribute, in the aggregate, any amount in excess of the amount by which the total price at which dollar amount of proceeds received by such Holder upon the Registrable sale of the Restricted Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for The indemnity and contribution provisions contained in this Section 11(d).
(e) The provisions of this Section 11 shall be 2.7 are in addition to any liability which any party the indemnifying Person may otherwise have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an the indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerPersons referred to above.
Appears in 1 contract
Sources: Financial Advisory Agreement (Senesco Technologies Inc)
Indemnification; Contribution. (a) The Company shall indemnify agrees to indemnify, defend and hold harmless the Foundationeach Holder, its officers and directorseach person, and any agent or investment adviser thereof against all lossesif any, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Holder to the same extent as provided above Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnification indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the Foundation. Notwithstanding sale of such Registrable Securities to such person, (x) a copy of the foregoing provisions of this Section 11(a), final prospectus if the Company shall had previously furnished copies thereof to such Holder or (y) an amendment or supplement to such final Prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not be liable jointly, agrees to indemnify, defend and hold harmless the FoundationCompany, its directors, officers, employees, representatives, agents and any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, person who controls any such underwriter (the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act), under this Section 11 for any the Exchange Act or otherwise, insofar as such loss, claim, damage, liability (expense, liability, claim or action or proceeding in respect thereof) or expense that arises out of an or is based upon any untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement, any Prospectus Statement or preliminary Prospectus, including any document incorporated by reference therein, or in any amendment or supplement to thereto or in any of the foregoingpreliminary prospectus, or (ii) arises out of or is based upon any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) under which they were made, not misleading, but only in each case in connection with such information furnished in writing by or on behalf of such Holder to the extent that Company expressly for such use; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such untrue statement controlling person in connection with investigating or omission is made defending any loss, damage, expense, liability, claim or action in reliance on and respect thereof. This indemnity agreement will be in conformity with information with respect addition to the Foundation furnished any liability which such Holder may otherwise have to the Company or any underwriter of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the Foundation or its counsel specifically for inclusion therein. Notwithstanding sale of the foregoing provisions of this Section 13(b), the Foundation shall not be liable Registrable Securities pursuant to the Company, any underwriter, each Shelf Registration Statement giving rise to such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementindemnification obligation.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of If any action, suitsuit or proceeding (each, proceeding a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or investigation or threat thereof made (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing for which of the institution of such indemnified party may claim indemnification or contribution pursuant Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to this Section 11 (provided that failure to give notify such notification Indemnifying Party shall not affect relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the obligations right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the indemnifying party pursuant to this Section 11 except to expense of such Indemnified Party unless the extent the indemnifying party employment of such counsel shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, authorized in each case subsequently incurred writing by such indemnified party, Indemnifying Party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party such Proceeding or such Indemnifying Party shall not have employed counsel reasonably satisfactory to such indemnified party to take have charge of the defense of such action Proceeding within a reasonable time after notice of commencement of such action thirty (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory30) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction days of the indemnified party its ability to finance receipt of notice thereof or such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be legal one or more defenses available to it which that are different from or from, additional to or in conflict with those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result Indemnifying Party (in a conflict of interest for which case such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ separate counsel, counsel and participate in which case the defense thereof but the fees and expenses of one such counsel or firm shall be at the expense of counsel (plus one local or regulatory counsel or firm such Indemnifying Party), in any of counsel) selected by a majority in interest of the indemnified parties which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the indemnifying party expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of all other counsel retained as contemplated by the indemnified parties second sentence of this paragraph, then such Indemnifying Party agrees that it shall be paid liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than sixty (60) Business Days after receipt by such Indemnifying Party of the indemnified partiesaforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to settle. No indemnified party shall Indemnifying Party shall, without the prior written consent to entry of any judgment or enter into Indemnified Party, effect any settlement without of any pending or threatened Proceeding in respect of which such 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 consent (which consentsubject matter of such Proceeding and does not include an admission of fault, in the case culpability or a failure to act, by or on behalf of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partysuch Indemnified Party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 6 is unavailable to an indemnified party hereunder Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, liabilities expenses, liabilities, claims or expenses actions referred to therein, then the indemnifying partyeach applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities and expenses expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders on the other hand from the offering of the Registrable 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 indemnifying party Company on the one hand and indemnified party of the Holders on the other in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company on the one hand and indemnified party of the Holders on the other shall be determined by reference to, among other things, whether any action in question, including any the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party by the Company or indemnified party, by the Holders and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, include any reasonable legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation or proceeding. Proceeding.
(e) The parties hereto Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 11(d) 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d)subsection (d) above. Notwithstanding the provisions of this Section 11(d)6, no underwriter Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten sold by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under The Holders’ respective obligations to contribute pursuant to this Section 11, the indemnifying parties shall indemnify each indemnified party 6 are several in proportion to the fullest extent provided in Section 11(a) or (b) hereofrespective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration and not joint. The remedies provided for in this Section 11(d)6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(ef) The indemnity and contribution provisions of contained in this Section 11 6 shall be remain operative and in addition to any liability which any party may have to any other party full force and shall survive effect regardless of (i) any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of , (ii) any investigation made by or on behalf of an indemnified partyany Holder or any person controlling any Holder or the Company, so long as such indemnified party is not guilty or the Company’s officers or directors or any person controlling the Company and (iii) the sale of acting in a fraudulent, reckless or grossly negligent mannerany Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Genome Therapeutics Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(ai) The Company To the extent permitted by applicable law, Akorn shall indemnify and hold harmless each Holder, and the Foundationpartners, its officers and members, officers, directors, employees, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any agent underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or investment adviser thereof underwriter within the meaning of the Securities Act or the Exchange Act, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' attorney’s fees and expenses) disbursements and reasonable expenses of investigation (collectively, “Losses”), incurred by such party Person pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon any of the following statements or omissions (icollectively, a “Violation”):
(1) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, including any Registration Statement, any preliminary Prospectus or preliminary Prospectusfinal Prospectus contained therein, or any amendment amendments or supplement to any of supplements thereto; or
(2) the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectustherein, in light of the circumstances then existing) under which they were made, not misleading; provided, except however, that the indemnification required by this Section 9(f)(i) shall not apply to amounts paid in each settlement of any such Loss if such settlement is effected without the consent of Akorn (which consent shall not be unreasonably withheld), nor shall Akorn be liable in any such case insofar as for any such Loss to the same arise extent that it arises out of or are is based upon, any such untrue statement or omission made upon a Violation which occurs in reliance on upon and in conformity with information with respect furnished in writing to the Foundation furnished to the Company Akorn by the Foundation or its counsel on behalf of a Holder or any underwriter expressly for use therein. In in connection with an Underwritten Offeringsuch registration; and provided, the Company further, that any indemnification required by this Section 9(f)(i) shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) not apply to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls that any such underwriter (within the meaning of Section 15 of the Securities Act Loss is based on or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, included in the or omitted from any preliminary Prospectus prospectus if the Foundationfinal prospectus shall correct such untrue statement or alleged untrue statement, or other Person on behalf of the Foundationsuch omission or alleged omission, failed to send or deliver and a copy of a the final Prospectus prospectus has not been sent or given by the Holder or any underwriter to the Person asserting the claim alleging damage at or prior to the written confirmation of sale to such Person; and provided, further, that this indemnity shall not apply to the sale extent that any such Loss is based on an offer or Transfer of the Registrable Securities to during any period which Akorn has notified the Holder that such Person offers and such statement Transfers must cease under the Agreement, including under Section 9(b), Section 9(c)(ii) or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this AgreementSection 9(c)(v).
(bii) In connection with any registration of Registrable Securities pursuant to this AgreementTo the extent permitted by applicable law, the Foundation Holders (severally and not jointly) shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriterAkorn, each such party's of the directors of Akorn, each of the officers and directors and of Akorn who shall have signed the Resale Registration Statement, each Person Person, if any, who controls each such party (Akorn within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and each officer, director, partner, and employee of such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) Losses incurred by each such party Person pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusViolation, in light of the circumstances then existing) not misleading, but only each case to the extent that such Violation arises out of or is based upon information furnished in writing by or on behalf of a Holder expressly for use in connection with such registration, or upon the Holder’s failure to properly and timely deliver an “official” Prospectus, or upon the Holder’s use of a written or oral prospectus other than the “official” Prospectus; provided, however, that any indemnification required by this Section 9(f)(ii) shall not apply to amounts paid in settlement of any such untrue statement or omission Loss if such settlement is made in reliance on and in conformity with information with respect to effected without the Foundation furnished to consent of the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation Holders (which consent shall not be liable to unreasonably withheld) and in no event shall the Company, amount of any underwriter, each such parties' officers or directors, any other Person who controls any such party (within indemnity obligation under this Section 9(f)(ii) exceed the meaning of Section 15 of gross proceeds from the Securities Act or Section 20 of applicable offering received by the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementHolders.
(ciii) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 9(f) of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 9(f), such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereof, thereof with counsel reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses 9(f) to the extent, but only to the extent, of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) prejudice but shall not relieve the indemnifying party shall not of any liability that it may have employed counsel reasonably satisfactory to such any indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected otherwise than pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then this Section 9(f). Any such indemnified party shall have the right to employ separate counselcounsel in any such action, claim or proceeding and to participate in which case the defense thereof, but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party and could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and any other counsel retained by the of such indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent with respect to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an such action, suit, claim or proceeding exclusively seeking monetary reliefproceeding, in which event the indemnifying party shall not be unreasonably withheld) obligated to pay the reasonable fees and expenses of each indemnifying partysuch additional counsel or counsels).
(div) If the indemnification required by this Section 9(f) from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Losses referred to therein, then in this Section 9(f):
(1) the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which that resulted in such losses, claims, damages, liabilities and expensesLosses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c9(f)(i), 9(f)(ii) hereofand 9(f)(iii), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The ;
(2) the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d11(f)(iv) were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d9(f)(iv)(1). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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(f11(e) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available .
(v) The obligations of Akorn and the Holders under this Section 11, 9(f) shall survive the indemnifying parties shall indemnify each indemnified party completion of any offering of Registrable Securities pursuant to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of registration statement under this Agreement. The indemnification provided by this Section 11 shall remain in full force , and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerotherwise.
Appears in 1 contract
Sources: Modification, Warrant and Investor Rights Agreement (Akorn Inc)
Indemnification; Contribution. (a) The In the event any Registrable Shares are included in a registration statement contemplated by this Agreement, the Company shall shall, and it hereby agrees to, indemnify and hold harmless harmless, or cause to be indemnified and held harmless, the FoundationInvestor and its officers, its officers and directors, managers, partners, employees, agents, representatives, trustees and controlling Persons, if any, in any agent offering or investment adviser thereof sale of the Registrable Shares, against all any losses, claims, damages, damages or liabilities in respect thereof and expenses (including reasonable attorneys' fees and expensesexpenses of counsel) incurred by or Actions in respect thereof (collectively, “Claims”), to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual or threatened action, suit, proceeding or investigation arising amounts paid in settlement effected with the consent of the Company as provided herein) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, or any Prospectus preliminary or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to any state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the foregoingcircumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse, upon request, the Investor for any legal or other out-of-pocket fees and expenses reasonably incurred and documented by it in connection with investigating or defending any such Claims; provided, that the Company shall not be liable to the Investor (or its officers, directors, managers, partners, employees, agents, representatives, trustees and controlling Persons, if any) in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with the Required Investor Information furnished to the Company in writing by the Investor or on behalf of the Investor by any Representative of the Investor, expressly for use therein, that is the subject of the untrue statement or omission.
(iib) In the event any Registrable Shares are included in a registration statement contemplated by this Agreement, the Investor shall, and hereby agrees to indemnify and hold harmless the Company and its officers, directors, managers, employees, agents, representatives and controlling Persons, if any, in any offering or sale of its Registrable Shares against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or Actions in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except and the Investor shall, and it hereby agrees to reimburse the Company for any legal or other out-of-pocket fees and expenses reasonably incurred and documented by the Company in connection with investigating or defending any such Claims, in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with information with respect to the Foundation Required Investor Information furnished to the Company or any underwriter in writing by the Foundation Investor or its counsel specifically Representative expressly for inclusion therein. Notwithstanding use therein that is the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 subject of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient omission; provided, however, that the liability of the Investor hereunder shall be limited to prevent an amount equal to the inclusion dollar amount of the net proceeds actually received by the Investor from the sale of Registrable Shares sold by the Investor pursuant to such untrue registration statement or omission in the Registration Statementprospectus.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to The Investor and the indemnifying party after the receipt by such indemnified party of Company agree that if, for any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofreason, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this indemnification provisions contemplated by Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory2.7(a) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (iiSection 2.7(b) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with respect to the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsapplicable offering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 2.7(c) is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d2.7(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d2.7(c), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 2.8) any damages which legal or other out-of-pocket fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionAction. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11Notwithstanding the foregoing, the indemnifying parties Investor shall indemnify each indemnified party not be liable to contribute any amount in excess of the dollar amount equal to the fullest extent provided sum of (i) the net proceeds received by the Investor from the sale of Registrable Shares sold by the Investor pursuant to such registration statement or prospectus, minus (ii) any amounts paid or payable by the Investor pursuant to Section 2.7(b) (except in Section 11(a) or (b) hereof, as the case may be, without regard to of fraud or willful misconduct by the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(dInvestor).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Registration Rights Agreement (Franchise Group, Inc.)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless indemnify, to the Foundationfullest extent permitted by Applicable Law, each holder of Registrable Securities, its officers and officers, directors, partners, employees and any agent or investment adviser thereof agents, if any, and each Person, if any, who controls such holder within the meaning of Section 15 of the Securities Act, against all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (including reasonable attorneys' fees and expenses) incurred under the Securities Act or common law or otherwise), joint or several, resulting from any violation by such party pursuant to any actual the Company of the provisions of the Securities Act or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus registration statement or preliminary Prospectus, prospectus (and as amended or supplemented if amended or supplemented) or any amendment preliminary prospectus or supplement to any of the foregoing, or (ii) caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectusany prospectus, in light of the circumstances then existingunder which they were made) not misleading, except to the extent that such losses, claims, damages, liabilities (or proceedings in each case insofar as the same arise out of respect thereof) or expenses are based upon, caused by any such untrue statement or alleged untrue statement contained in or by any omission made or alleged omission from information concerning any holder of Registrable Securities furnished in reliance on and in conformity with information with respect to the Foundation furnished writing to the Company by the Foundation or its counsel such holder expressly for use therein. In connection with If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, no action or failure to act on the part of such underwriters (whether or not such underwriter is an Underwritten OfferingAffiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence. If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, the Company shall agrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify the underwriters thereofsuch underwriters, their officers, directors directors, employees and agents agents, if any, and each Person Person, if any, who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as herein before provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions holders of this Section 11(a), Registrable Securities; provided that the Company shall not be liable required to the Foundationindemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of Act, to the Exchange Act), under this Section 11 for any such extent that the loss, claim, damage, liability (or action or proceeding proceedings in respect thereof) or expense that arises out for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, at or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and if such statement or omission was corrected in such amended or supplemented final Prospectus prospectus prior to such written confirmation and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance underwriter was provided with this Agreementsuch amended or supplemented final prospectus.
(b) In connection with any registration statement in which a holder of Registrable Securities pursuant is participating, each such holder, severally and not jointly, shall indemnify, to this Agreementthe fullest extent permitted by Applicable Law, the Foundation shall furnish to the Company Company, each underwriter and any underwriter in writing such informationtheir respective officers, including the namedirectors, address employees and the amount of Registrable Securities held by the Foundationagents, as if any, and each Person, if any, who controls the Company or any such underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and against any agent or investment adviser thereof against all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) resulting from any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusfact, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein of a material fact required to be stated therein in the registration statement or prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectusany prospectus, in light of the circumstances then existingunder which they were made) not misleading, but only to the extent that any such untrue statement is contained in or such omission is made from information so concerning a holder furnished in reliance on and in conformity with information with respect writing by such holder expressly for use therein; provided that such holder’s obligations hereunder shall be limited to an amount equal to the Foundation furnished net proceeds to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 holder of the Registrable Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient sold pursuant to prevent the inclusion of such untrue statement or omission in the Registration Statementregistration statement.
(c) Any Person entitled to indemnification hereunder agrees to under the provisions of this Section 3.7 shall (i) give prompt written notice to the indemnifying party after the receipt by of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party party’s reasonable judgment a conflict of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which interest between such indemnified party and indemnifying parties may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give exist in respect of such notification shall not affect the obligations of the claim, permit such indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofof such claim, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party; and if such defense is so assumed, be counsel to the indemnifying 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent of the indemnified party if such settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any liability for any settlement made without its consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) ); and any underwriting agreement entered into with respect to any registration statement provided for under this Article III shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of each a claim, such indemnifying partyparty shall not be obligated to pay the fees and expenses of more than one counsel or firm of counsel for all parties indemnified by such indemnifying party in respect of such claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties in respect to such claim.
(d) If for any reason the indemnification from the indemnifying party provided for in this Section 11 foregoing indemnity is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to thereinunavailable, then the indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such the indemnified party as a result of such losses, claims, damages, liabilities and or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other or (ii) if the allocation provided by clause (i) above is not permitted by Applicable Law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnifying party and the indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d)foregoing, no underwriter holder of Registrable Securities 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise holder would have been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and to an indemnified party if the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionindemnity under Section 3.7(b) was available. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under The obligation of any Person to contribute pursuant to this Section 11, the indemnifying parties 3.7 shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)be several and not joint.
(e) The An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 11 shall be 3.7 to or for the account of the indemnified party from time to time promptly upon receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 3.7 shall remain in full force and effect irrespective regardless of any investigation made by or on behalf of an indemnified partya participating holder of Registrable Securities, so long its officers, directors, agents or any Person, if any, who controls such holder as aforesaid, and shall survive the Transfer of Equity Securities by such indemnified party is not guilty holder and the termination of acting in a fraudulent, reckless or grossly negligent mannerthis Agreement for any reason.
Appears in 1 contract
Sources: Stockholders Agreement (Eye Care Centers of America Inc)
Indemnification; Contribution. (aA) The Company shall agrees to indemnify and hold harmless each Holder covered by the FoundationShelf Registration Statement, its officers and each Initial Purchaser, the directors, officers, employees, Affiliates and agents of each such Holder or Initial Purchaser and each person who controls any agent such Holder or investment adviser thereof Initial Purchaser within the meaning of either the 1933 Act or the 1934 Act (collectively, the “Section 4 Persons”) against any and all losses, claims, damagesdamages or liabilities, joint or several, to which they or any of them may 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 and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement as originally filed or in any Registration Statementamendment thereof, or in any preliminary Prospectus or preliminary the Prospectus, or in any amendment thereof or supplement to any of the foregoingthereto, or (ii) any arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a any preliminary Prospectus or a preliminary the Prospectus, in the light of the circumstances then existingunder which they were made) not misleading, except and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act investigating or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for defending any such loss, claim, damage, liability (or action action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or proceeding in respect thereof) or expense that liability arises out of an or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the preliminary Prospectus if the Foundation, Company by or other Person on behalf of the Foundationparty claiming indemnification specifically for inclusion therein and provided, failed further that the foregoing indemnity agreement with respect to send or deliver any preliminary Prospectus shall not inure to the benefit of any Section 4 Person if it shall be established that a copy of a final the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Section 4 Person to the Person asserting the claim such losses, claims, damages or liabilities, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Registrable Securities to such Person and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such statement loss, claim, damage or omission was corrected in such final Prospectus liability, and if the Company had previously and timely furnished sufficient copies thereof to such Section 4 Persons. This indemnity agreement shall be in addition to any liability that the Foundation Company may otherwise have. The Company also agrees to indemnify as provided in accordance with this AgreementSection 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.
(bB) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held Each Holder covered by the Foundation, as the Company or any underwriter reasonably requests for use in the Shelf Registration Statement relating to (including each Initial Purchaser that is a Holder, in such registration or the related Prospectus capacity) severally and not jointly agrees to indemnify and hold harmless the Company, any underwritereach of its directors, each such party's of its officers and directors who signs the Shelf Registration Statement and each Person person who controls each such party (the Company within the meaning of Section 15 of either the Securities 1933 Act or Section 20 of the Exchange 1934 Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by to the same extent as the foregoing indemnity from the Company to each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleadingHolder, but only with reference to the extent that any written information relating to such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation Holder furnished to the Company by or any underwriter by the Foundation or its counsel on behalf of such Holder specifically for inclusion therein. Notwithstanding in the documents referred to in the foregoing provisions of this Section 13(b), the Foundation 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 liable in addition to the Company, any underwriter, each such parties' officers or directors, any other Person who controls liability that any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementNotice Holder may otherwise have.
(cC) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 4 of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may will, if a claim indemnification or contribution pursuant in respect thereof is to this Section 11 (provided that failure to give such notification shall not affect the obligations of be made against the indemnifying party pursuant to under this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall 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 participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent including local counsel) of the indemnified party, be counsel to the indemnifying party), and after notice from ’s choice at the indemnifying party party’s expense to such represent the indemnified party of its election so to assume the defense thereof, in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be liable to such 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 under this Section 11 for any legal expenses of other or parties except as set forth below); provided, however, that such counsel or any other expenses, in each case subsequently incurred by such shall be satisfactory to the indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoingindemnifying 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 indemnifying party shall not have employed use of counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination chosen by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of represent the indemnified party its ability to finance would present such defense, or 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 such indemnified party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it which and/or other indemnified parties that are different from or additional to those available to the indemnifying party which, if party; (iii) the indemnifying party and such shall not have employed counsel satisfactory to the indemnified party were to be represented by represent the same counsel, could result in indemnified party within a conflict of interest for such counsel or materially prejudice the prosecution reasonable time after notice of the defenses available to institution of such indemnified party, then such action; or (iv) the indemnifying party shall authorize the indemnified party shall have the right to employ separate counselcounsel at the expense of the indemnifying party. It is understood, however, that the Company shall not, in which case 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 counsel or separate firm of counsel (plus one local or regulatory counsel or firm of counsel) selected attorneys at any time for all such indemnified parties, which shall be designated in writing by a majority in interest the Initial Purchasers. An indemnifying party will not, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall , settle or compromise or consent to the entry of any judgment with respect to any pending or enter into any settlement without 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 (which consenti) includes an unconditional release of each indemnified party from all liability arising out of such claim, in the case of an action, suit, claim suit or proceeding exclusively seeking monetary reliefand (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 unreasonably withheld) liable for any settlement of each any proceeding effected without its written consent, but if settled with such consent the indemnifying partyparty agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement.
(dD) If In the indemnification from event that the indemnifying party indemnity provided for in paragraph (A) or (B) of this Section 11 4 is unavailable to or insufficient to hold harmless an indemnified party hereunder in respect of for any reason, then each applicable indemnifying party shall have a joint and several obligation to contribute to the aggregate losses, claims, damagesdamages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending loss, liabilities claim, liability, damage or expenses referred action) (collectively “Losses”) to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by which such indemnified party as a result of such losses, claims, damages, liabilities and expenses may be subject in such proportion as is appropriate to reflect the relative fault 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 Offering Memorandum, 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 actions statements or omissions which resulted in such losses, claims, damages, liabilities and expenses, Losses 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 (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 on the cover page of the Offering Memorandum, 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 of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or any alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied byprovided by the indemnifying party, such indemnifying party on the one hand, or by the indemnified party, on the other hand, the intent of the parties and the parties' their relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid untrue statement or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceedingomission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d)above. Notwithstanding the provisions of this Section 11(dparagraph (D), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under For purposes of this Section 114, each person who controls a Holder within the indemnifying parties meaning of either the 1933 Act or the 1934 Act and each director, officer, employee and agent of such Holder shall indemnify have the same rights to contribution as such Holder, and each indemnified party 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 fullest extent provided in Section 11(a) or applicable terms and conditions of this paragraph (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(dD).
(eE) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 4 shall remain in full force and effect irrespective effect, regardless of any investigation made by or on behalf of an any Holder or the Company or any of the indemnified partypersons referred to in this Section 4, so long as such indemnified party is not guilty of acting in and shall survive the sale by a fraudulent, reckless or grossly negligent mannerHolder covered by the Shelf Registration Statement.
Appears in 1 contract
Indemnification; Contribution. (a) The Company Amicus shall indemnify and hold harmless each Holder (including the Foundationpartners, its members, employees, agents, representatives, officers and directors, directors of each Holder and its Affiliates) from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue untrue, or alleged untrue allegedly untrue, statement of a material fact contained in any Registration Statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment notification or supplement to any offering circular prepared by Amicus in connection with the Registration and/or offering of the foregoing, Registrable Securities (as amended or (iisupplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of are proximately caused by or are based upon, contained in any information concerning such untrue statement or omission made Holder furnished in reliance on writing to Amicus by such Holder specifically and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offeringinclusion in such document.
(b) Each Holder shall, the Company shall severally and not jointly, indemnify the underwriters thereofand hold harmless Amicus, their and its respective directors, officers, directors and agents employees and each Person who controls such underwriters Amicus (within the meaning of Section 15 of the Securities Act or Section 20 of and the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, from and against any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue untrue, or alleged untrue allegedly untrue, statement of a material fact contained in any Registration Statement, any Prospectus prospectus or preliminary Prospectus, prospectus or any amendment notification or supplement to any offering circular prepared by Amicus in connection with the Registration and/or offering of the foregoing, Registrable Securities (as amended or (iisupplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any if such untrue statement or omission is was made in reliance on upon and in conformity with any information with respect concerning such Holder furnished in writing to Amicus by such Holder specifically and expressly for use in the Foundation furnished to the Company or preparation of such document; provided, however, that in no event shall any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of indemnity under this Section 13(b), 7.5(b) be greater in amount than the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 aggregate dollar amount of the Securities Act or Section 20 of proceeds received by such Holder upon the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion sale of such untrue statement or omission in the Registration StatementRegistrable Securities pursuant to such document.
(c) Any Each Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by such indemnified party the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may the Indemnified Party intends to claim indemnification or contribution pursuant to this Section 11 (provided Agreement; provided, however, that the failure to give such notification so notify the Indemnifying Party shall not affect relieve the obligations Indemnifying Party of any liability that it may have to the indemnifying party pursuant to this Section 11 except Indemnified Party hereunder unless, and only to the extent that, the indemnifying party shall have been Indemnifying Party is actually and materially prejudiced as a result of by such failure). In case If notice of commencement of any such action shall be brought against any indemnified party and it shall notify is given to the indemnifying party of the commencement thereofIndemnifying Party as above provided, the indemnifying party Indemnifying Party shall be entitled to participate therein in and, to the extent that it shall may wish, jointly with any other indemnifying party Indemnifying Party similarly notified, to assume the defense thereofof such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party (who Indemnified Party. The Indemnified Party shall not, except with have the consent of the indemnified party, be right to employ separate counsel to the indemnifying party), in any such action and after notice from the indemnifying party to such indemnified party of its election so to assume participate in the defense thereof, but the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal fees and expenses of other such counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof (other than reasonable costs of investigation. Notwithstanding ) shall be paid by the foregoing, if Indemnified Party unless (i) the indemnifying party shall not have employed counsel reasonably satisfactory Indemnifying Party agrees to such indemnified party pay the same, (ii) the Indemnifying Party fails to take charge of assume the defense of such action within a with counsel reasonably satisfactory to the Indemnified Party in its reasonable time after notice of commencement of judgment or (iii) the named parties to any such action (so long as such failure to employ counsel is not the result of an unreasonable determination including any impleaded parties) have been advised by such indemnified party counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction would be inappropriate under applicable standards of the indemnified party its ability to finance such defense, professional conduct or (iiy) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it which that are different from or additional to those available to the indemnifying party whichIndemnifying Party. In either of such cases in clause (iii) above, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party Indemnifying Party shall not have the right to employ separate counsel, in which case assume the fees and expenses defense of one counsel or firm such action on behalf of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified partiessuch Indemnified Party. No indemnified party Indemnifying Party shall consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to each Indemnified Party of an unconditional release from all liability in respect to such claim or litigation, or that contains any admission of wrongdoing by or on behalf of any Indemnified Party, without the prior written consent (of such Indemnified Party, which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, consent shall not be unreasonably withheld; provided however, that an Indemnifying Party may consent to entry of any judgment or enter into any settlement that includes such a release and that does not contain such an admission without consent of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be unreasonably withheld. Notwithstanding the foregoing, if at any time an Indemnified Party shall have requested that an Indemnifying Party reimburse the Indemnified Party for reasonable fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Party shall be liable for any settlement of any proceeding effected without its written consent if (x) such settlement is entered into in good faith more than sixty (60) days after receipt by the Indemnifying Party of each indemnifying partysuch request and more than thirty (30) days after receipt of the proposed terms of such settlement and (y) if such reimbursement was actually due under this Agreement, the Indemnifying Party shall not have reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement.
(d) If the indemnification from the indemnifying party provided for in this Section 11 7.5 from the Indemnifying Party is unavailable to an indemnified party Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party and indemnified party Indemnified Party in connection with the actions which that resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault faults of such indemnifying party Indemnifying Party and indemnified party Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(cSections 7.5(a), (b) hereofand (c), any legal and or other fees and fees, charges or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d7.5(d) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No Person guilty of an intentional or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentationPerson. If indemnification is available under this Section 11, Notwithstanding the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 Article 7, no Holder shall be required to contribute any amount greater in addition amount than the aggregate dollar amount of the proceeds received by such Holder upon the sale of such Registrable Securities pursuant to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerthe applicable Registration Statement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Amicus Therapeutics, Inc.)
Indemnification; Contribution. (ai) The In the event of any registration of any Registrable Securities pursuant to the terms of Section 6, the Company shall will indemnify and hold harmless harmless, to the Foundationfullest extent permitted by law, its officers each of the Designated Holders and their respective Affiliates, directors, officers, partners, trustees, employees, legal counsel, accountants, financial advisors and agents, and each other Person, if any, who controls (within the meaning of the Securities Act and the Exchange Act) such Designated Holder or any agent or investment adviser thereof such directors, officers, partners, trustees, employees, legal counsel, accountants, financial advisors and agents (each of the foregoing, a "designated indemnified party") against any and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation), joint or several, to which such designated indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions or proceedings in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (ix) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (iiy) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (not misleading contained in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any Registration Statement under which such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of Registrable Securities were registered under the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), PROVIDED, HOWEVER, that the Company shall not be liable in any such case to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for extent that any such loss, claim, damage, damage or liability (or action actions or proceeding proceedings in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or is based upon (ix) any untrue or alleged untrue statement of any material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (iiy) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (not misleading in the case of a Prospectus such Registration Statement, or a preliminary Prospectusamendment or supplement thereto, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation concerning such Designated Holder and furnished to the Company or for use in the preparation thereof.
(ii) The Company may require, as a condition to including any underwriter by Registrable Securities in any Registration Statement filed pursuant to Section 6, that the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)Company shall have received an undertaking from each Designated Holder selling such Registrable Securities, the Foundation shall severally and not be liable jointly, to indemnify and hold harmless the Company, any underwriter, each such parties' officers or its directors, any officers, legal counsel, accountants and financial advisors and each other Person Person, if any, who controls any such party (within the meaning of Section 15 the Securities Act and the Exchange Act) the Company or any such directors, officers, legal counsel, accountants and financial advisors (each of the foregoing, a "Company Indemnified Party") against any losses, claims, damages, liabilities or expenses, joint or several, to which such Company Indemnified Party may become subject under the Securities Act or Section 20 otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing are based upon (x) any untrue statement or alleged untrue statement of a material fact or (y) any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading contained in time reasonably sufficient to prevent any Registration Statement under which such Registrable Securities were registered under the inclusion of Securities Act or any amendment or supplement thereto, if such untrue statement or omission was made in reliance upon and in conformity with written information concerning such Designated Holder and furnished to the Registration StatementCompany; PROVIDED, in each instance, that any Designated Holder's maximum liability in respect of such indemnification obligations shall be limited to the amount of net (pre-tax) proceeds actually received by such Designated Holder pursuant to the sale of such Registrable Securities.
(ciii) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such indemnified party any designated Indemnified Party or Company Indemnified Party (each, an "Indemnified Party") of any written notice of the commencement of any action, suit, proceeding or investigation or threat threatened thereof made in writing for which such indemnified party may the Indemnified Party intends to claim indemnification or contribution pursuant to this Section 11 (provided Agreement, such Indemnified Party will give written notice thereof to the Indemnifying Party; PROVIDED, HOWEVER, that the failure of any Indemnified Party to give such notification notice as provided herein shall not affect relieve the Indemnifying Party of its obligations of the indemnifying party pursuant to under this Section 11 Agreement, except to the extent that the indemnifying party shall have been Indemnifying Party is actually prejudiced as a result by such failure to give notice. If notice of such failure). In case commencement of any such action shall be is brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofan Indemnified Party, the indemnifying party shall be entitled to Indemnifying Party may, at its expense, participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to in and assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who Indemnified Party. The Indemnified Party shall not, except with have the consent of the indemnified party, be right to employ separate counsel to the indemnifying party), in any such action and after notice from the indemnifying party to such indemnified party of its election so to assume participate in the defense thereof, but the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal fees and expenses of other such counsel or any other expenses, in each case subsequently incurred shall be paid by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if Indemnified Party unless (i) the indemnifying party shall not have employed counsel reasonably satisfactory Indemnifying Party agrees to such indemnified party pay the same, (ii) the Indemnifying Party fails to take charge of assume the defense of such action within a with counsel satisfactory to the Indemnified Party in its reasonable time after notice of commencement of judgment or (iii) the named parties to any such action (so long as such failure to employ counsel is not the result of an unreasonable determination including any impleaded parties) have been advised by such indemnified party counsel in writing that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction would be inappropriate under applicable standards of the indemnified party its ability to finance such defense, professional conduct or (iiy) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it the Indemnified Party which are different from or additional to those available to the indemnifying party which, if Indemnifying Party. In no event shall the indemnifying party and such indemnified party were to Indemnifying Party be represented by the same counsel, could result in a conflict of interest responsible for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of more than one counsel or firm of counsel (plus one in addition to local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of for all other counsel retained by the indemnified parties shall be paid by the indemnified partiesIndemnified Parties. No indemnified party Indemnifying Party or Indemnified Party shall consent to entry of any judgment or enter into any settlement without the written consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)other.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the Foundationoffering or sale of such securities, its officers (iii) each person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the persons referred to in this clause (iii) being hereinafter referred to as a "controlling person") and (iv) the respective officers, directors, partners, employees, representatives and agents of any agent such Holder or investment adviser thereof underwriter or any controlling person (any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and expenses liabilities, judgments or expenses, joint or several (including reasonable attorneys' fees and expensesor actions or proceedings, whether commenced or threatened, in respect thereof) incurred by (collectively, "Claims"), to which such party pursuant to any actual indemnified Person may become subject under either Section 15 of the Securities Act or threatened actionSection 20 of the Exchange Act or otherwise, suit, proceeding or investigation arising insofar as such Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Statement or Prospectus or preliminary Prospectus, (or any amendment or supplement to any of the foregoingthereto), or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except in each case insofar as the same arise out such losses, claims, damages, liabilities, judgments or expenses of or any such indemnified Person; (x) are based upon, caused by any such untrue statement or omission made or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in reliance writing to the Company by or on and in conformity with information behalf of any of such indemnified Person expressly for use therein; (y) with respect to the Foundation preliminary Prospectus, result from the fact that such Holder sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Blackout Notice or a notice from the Company of the existence of any fact of the kind described in Section 2.4(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the underwriters thereofwritten consent of the Company. The Company shall not, their officerswithout the prior written consent of each indemnified Person, directors settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and agents not jointly, to indemnify and each Person who controls such underwriters hold harmless the Company and its directors, officers and any person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each person, to the same extent as provided above the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the indemnification extent of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Persongross proceeds, if any, who controls received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as be brought against the Company or its directors or officers or any underwriter reasonably requests for use such controlling person in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning respect of Section 15 which indemnity may be sought against a Holder of the Restricted Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred covered by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of such Holder shall have the foregoing, or rights and duties given the Company in Section 2.8(a) (ii) any omission or alleged omission to state therein a material fact except that the Holder may but shall not be required to be stated therein or necessary to make assume the statements therein (in the case of a Prospectus or a preliminary Prospectusdefense thereof), in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation its directors or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within controlling person shall have the meaning of rights and duties given to each Holder by Section 15 of the Securities Act or Section 20 of the Exchange Act2.8(a), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 2.8 is unavailable to an indemnified party hereunder under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the indemnifying partycase of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, claims damages, liabilities and liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities or (ii) if such 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 Company and indemnified party such Holder in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such indemnifying party and indemnified party Holder on the other shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company or by such indemnifying party or indemnified party, Holder and the parties' parties relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 11(c) hereof2.8(a), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation action or proceedingclaim. The parties hereto Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 11(d2.8(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d)the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d), 2.8(c) no underwriter Holder (and none of its related indemnified Persons) shall be required to contribute contribute, in the aggregate, any amount in excess of the amount by which the total price at which dollar amount of proceeds received by such Holder upon the Registrable sale of the Restricted Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11The indemnity, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for and contribution provisions contained in this Section 11(d).
(e) The provisions of this Section 11 shall be 2.8 are in addition to any liability which any party the indemnifying person may otherwise have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an the indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerpersons referred to above.
Appears in 1 contract
Sources: Registration Rights Agreement (Nava Leisure Usa Inc)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company shall will indemnify and hold harmless the Foundationeach Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), its officers and directors, officers, employees, representatives and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out agents of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoingthem, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, person who controls any such underwriter (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, reasonable 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 this Section 11 for the Securities Act, the 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) or (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; provided, however, that the Company will not be liable to the extent that (1) 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 Holder in accordance with Section 4(b) of this Agreement for use in such registration statement, or (or action or proceeding 2) in respect thereof) or expense that arises out the case of an a sale directly by such Holder (including a sale of Registrable Securities through any underwriter retained by such Holder to engage in a distribution solely on behalf of such Holder), such untrue statement or alleged untrue statement or omission or alleged omission was contained in the a preliminary Prospectus if the Foundationprospectus and corrected in a final or amended prospectus, or other Person on behalf of the Foundation, and such Holder failed to send or deliver a copy of a the final Prospectus to the Person asserting the claim or amended prospectus at or prior to the written confirmation of the sale of the Registrable Securities to the Person asserting any such Person and loss, claim, damage or liability in any case where such delivery is required by the Securities Act or any state securities laws. With respect to such untrue statement or omission was corrected or alleged untrue statement or omission in such final Prospectus and the information furnished in writing to the Company had previously and timely furnished sufficient copies thereof to the Foundation by or on behalf of such Holder in accordance with Section 4(a) of this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests Agreement for use in the Registration Statement relating to such registration or the related Prospectus statement, such Holder, on a several and agrees to not joint basis, will indemnify and hold harmless the CompanyCompany (including its directors, any underwriterofficers, employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such party's officers partners) and directors directors, officers, employees, representatives and agents of any of them, and each Person person who controls each such party (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities reasonable expenses and expenses liabilities, joint or several (including any reasonable attorneys' fees investigation, legal and expenses) other expenses incurred by each such party pursuant to in connection with, and any actual or threatened amount paid in settlement of, any action, suit, suit or proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statementclaim asserted, any Prospectus or preliminary Prospectusas the same are incurred), to which they, or any amendment or supplement to any of them, may become subject under the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)Securities Act, the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Exchange Act or Section 20 of the Exchange Act)other federal or state statutory law or regulation, at common law or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementotherwise.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(db) If the indemnification from the indemnifying party provided for in this Section 11 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, expenses or liabilities or expenses referred to therein, then the each indemnifying partyparty under this Section 5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the other Holders from the offering of the Registrable 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 indemnifying party Company and indemnified party the other Holders in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and expensesexpenses or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Holders shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and the Holders, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of such indemnifying party the Company and indemnified party the Holders shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, such indemnifying party by or indemnified party, on behalf of the Company or the Holders and the parties' Parties’ relative intent, knowledge, knowledge and access to information and opportunity to correct or prevent such actioninformation. The amount paid or payable by a party as a result of Company and the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto Holders agree that it would not be just and equitable if contribution pursuant to this Section 11(d5(b) 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 above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No Person 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 person who was not found guilty of such fraudulent misrepresentation. If indemnification is available under .
(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 115 shall be deemed to include, subject to the indemnifying parties shall indemnify each limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party to the fullest extent provided in Section 11(a) connection with investigating or (b) hereofdefending any such action or claim, payable as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration same are incurred. The indemnification and contribution provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall 5 will remain in full force and effect irrespective regardless of any investigation made by or on behalf of an the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld. Any indemnified party that proposes to assert the right to be indemnified under this Section 5 will, promptly after receipt of notice of commencement or threat of any claim or action against such party in respect of which a claim is to be made against an indemnifying party under this Section 5 notify the indemnifying party in writing (such written notice, an “Indemnification Notice”) of the commencement or threat of such action, enclosing a copy of all papers served or notices received (if applicable), but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to any indemnified party under the foregoing provisions of this Section 5 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. The indemnified party will have the right to retain its own counsel in any such action if (i) the employment of counsel by the indemnified party has been authorized by the indemnifying party, (ii) the indemnified party’s counsel, with the concurrence of indemnifying party’s counsel, shall have reasonably concluded that there is a substantial likelihood of a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of such action or (iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action within a reasonable period of time following its receipt of the Indemnification Notice, in each of which cases the fees and expenses of the indemnified party’s separate counsel shall be at the expense of the indemnifying party; provided, however, that the indemnified party shall agree to repay any expenses so advanced hereunder if it is ultimately determined by a court of competent jurisdiction that the indemnified party to whom such expenses are advanced is not entitled to be indemnified; and provided, further, that so long as such the indemnified party is not guilty has reasonably concluded that no conflict of acting interest exists, the indemnifying party may assume the defense of any action hereunder with counsel reasonably satisfactory to the indemnified party.
(d) In the event of an underwritten offering of Registrable Securities under this Agreement, the Company and the Holders shall enter into standard indemnification and underwriting agreements with the underwriter thereof. To the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the provisions of this Section 5, the provisions in the underwriting agreement shall control.
(e) The obligation of the Company and Holders under this Section 5 shall survive the completion of any offering of Registrable Securities in a fraudulentregistration statement under Section 2, reckless or grossly negligent mannerand otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Emergent BioSolutions Inc.)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless harmless, to the Foundationfullest extent permitted by law, its officers each Stockholder in any offering or sale of Registrable Common Shares pursuant to this Agreement, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Common Shares, and each Person, if any, who controls such Stockholder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and any agent or investment adviser thereof affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees ’ fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) (collectively, “Losses”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon upon: (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, any Issuer Free Writing Prospectus or (ii) any omission “issuer information” filed or alleged omission to state therein a material fact required to be stated therein filed pursuant to Rule 433(d) under the Securities Act, or necessary to make the statements therein (in the case of a Prospectus or Prospectus, a preliminary Prospectus, an Issuer Free Writing Prospectus or “issuer information,” in the light of the circumstances then existing) not misleading, except in each case insofar as the same such statements or omissions arise out of or are based upon, upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to the Foundation such Stockholder furnished in writing to the Company by the Foundation such Stockholder or its counsel expressly for use therein. In , (B) the use of any Prospectus, Issuer Free Writing Prospectus or “issuer information” after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus, Issuer Free Writing Prospectus or “issuer information” after such time as the Company has advised the Stockholders that the filing of an amendment or supplement thereto is required, except such Prospectus, Issuer Free Writing Prospectus or “issuer information” as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with an Underwritten Offeringany such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Stockholder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either: (i) (A) such Stockholder 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 Common Shares by such Stockholder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission; or (ii) (A) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (B) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Stockholder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Common Shares by such Stockholder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Common Shares by such indemnified party.
(b) In connection with any Registration Statement filed pursuant to this Agreement, each Stockholder holding Registrable Common Shares to be covered thereby shall, severally and not jointly with any other Stockholders, indemnify and hold harmless, to the underwriters thereoffullest extent permitted by law, their officersthe Company, directors each Person, if any, who participates as an underwriter in any such offering and agents sale of Registrable Common Shares and each Person Person, if any, who controls the Company or such underwriters (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof their respective directors, trustees, officers, partners, agents, employees and affiliates, against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) Losses incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, any Issuer Free Writing Prospectus or (ii) any omission “issuer information” filed or alleged omission to state therein a material fact required to be stated therein filed pursuant to Rule 433(d) under the Securities Act, or necessary to make the statements therein (in the case of a Prospectus, preliminary Prospectus or a preliminary Issuer Free Writing Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation such Stockholder furnished in writing to the Company or any underwriter by the Foundation such Stockholder or its counsel specifically for inclusion use therein. Notwithstanding ; provided, however, that no Stockholder shall be required to indemnify the foregoing provisions of Company or any other indemnified party under this Section 13(b), the Foundation shall not be liable 12(b) with respect to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 amount in excess of the Securities Act or Section 20 amount of the Exchange Act), or any agent or investment advisor thereof, if total net proceeds received by such Stockholder from sales of the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion Registrable Common Shares of such untrue statement or omission in the Stockholder under such Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 12 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to unless in the reasonable satisfaction judgment of any indemnified party, based on the indemnified party its ability opinion of counsel, a conflict of interest is likely to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both exist between the indemnifying party and such indemnified party and any other of such indemnified party shall have reasonably concluded that there may be legal defenses available parties with respect to it such claim, in which are different from or additional to those available to event the indemnifying party which, if the indemnifying party and such indemnified party were to shall not be represented by the same counsel, could result in a conflict of interest liable for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of (i) more than one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) for all Stockholders holding Registrable Common Shares who are indemnified parties, selected by the Stockholders holding a majority in interest Majority of the Registrable Common Shares held by all Stockholders who are indemnified parties (which selection shall be borne by reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party and who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel retained for all Stockholders holding Registrable Common Shares who are indemnified parties, selected by the Stockholders holding a Majority of the Registrable Common Shares who are indemnified parties (which selection shall be paid reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified partiesparty of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or enter entry into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 12 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to thereinLosses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expensesLosses, as well as any other relevant equitable considerations; provided, however, that no Stockholder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Stockholder from sales of the Registrable Common Shares of the Stockholder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof12(c), any legal and or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 1112, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in Section 11(a12(a) or (b) hereof12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d12(d).
(e) The provisions of this Section 11 12 shall be in addition to any liability which any indemnifying party may have to any other indemnified party and shall survive any the termination of this Agreement. .
(f) The indemnification provided and contribution required by this Section 11 12 shall remain in full force and effect irrespective be made by periodic payments of the amount thereof during the course of any investigation made by action, suit, proceeding or on behalf of an indemnified partyinvestigation, so long as such indemnified party is not guilty of acting in a fraudulent, reckless and when invoices are received or grossly negligent mannerLosses are incurred.
Appears in 1 contract
Sources: Registration Rights Agreement (PAETEC Holding Corp.)
Indemnification; Contribution. (ai) The Company shall Counterparty agrees to indemnify and hold harmless the FoundationCS, its officers and affiliates, their respective directors, officers, employees, agents, advisors, brokers and representatives and each person who controls CS or its affiliates within the meaning of either the Securities Act or the Exchange Act against, and Counterparty agrees that no indemnified party shall have any agent liability to Counterparty or investment adviser thereof against all any of its affiliates, officers, directors, or employees for, any losses, claims, damages, liabilities and expenses (whether direct or indirect, in contract, tort or otherwise) or expenses, joint or several, to which any indemnified party may become subject under the Securities Act, the Exchange Act (including reasonable attorneys' fees and expenses) incurred by such party pursuant without limitation, under Section 16 of the Exchange Act relating to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement Counterparty’s failure to any of the foregoing, or (ii) any omission or alleged omission to state therein promptly provide CS with a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation Repurchase Notice in accordance with the provisions contained in this Agreement.
(bConfirmation) In connection with any registration of Registrable Securities pursuant to this Agreementor other federal or state law or regulation, the Foundation shall furnish to the Company and any underwriter in writing at common law or otherwise, insofar as such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and or expenses (including reasonable attorneys' fees and expensesor actions, claims, investigations or proceedings in respect thereof, whether commenced or threatened) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising (i) arise out of or based relate to (A) actions or failures to act by Counterparty or (B) actions or failures to act by an indemnified party with the consent, upon (i) any untrue the direction of or alleged untrue statement with the knowledge of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, Counterparty or (ii) otherwise arise out of or relate to the Transaction or any omission or alleged omission related transactions, provided that this clause (ii) shall not apply to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleadingextent, but only to the extent extent, that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then of an indemnified party have resulted primarily from the indemnifying party, in lieu gross negligence or willful misconduct of indemnifying such indemnified party, shall contribute . Counterparty agrees to the amount paid or payable by reimburse promptly each such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, for any legal and or other fees and expenses reasonably incurred by such indemnified party them in connection with investigating or defending any investigation such loss, claim, damages, liability, expense or proceedingaction. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall This indemnity agreement will be in addition to any liability which any party Counterparty may have to any other party otherwise have, and shall survive any termination the completion of this Agreement. The indemnification provided the Transaction contemplated by this Section 11 Confirmation and shall remain in full force and effect irrespective inure to the benefit of any investigation made by permitted assignee or on behalf designee of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerCS.
Appears in 1 contract
Sources: Issuer Share Option Transaction (Atp Oil & Gas Corp)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless harmless, to the Foundationextent permitted by law, each Holder of Registrable Securities, its officers and directors, and any agent or investment adviser thereof each person, if any, who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities liabilities, and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statementregistration statement under which Registrable Securities owned by such Holder were registered under the Securities Act, or in any Prospectus related prospectus or preliminary Prospectusprospectus, or any amendment thereof or supplement to any of the foregoingthereto, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus prospectus or a preliminary Prospectusprospectus, in the light of the circumstances then existingunder which they were made) not misleading, except in each case insofar as the same arise out are caused by or contained in any information or affidavit with respect to such Holder furnished in writing to the Company by such Holder expressly for use therein or by such Holder's failure to furnish the Company upon request with the information with respect to such Holder or such Holder's plan of or are based upon, any such distribution that is the subject of the untrue statement or omission made in reliance on and in conformity with or by such Holder's failure to deliver a copy of the applicable registration statement or prospectus (exclusive of the documents, if any, from which information with respect to the Foundation furnished to is incorporated by reference) after the Company by has furnished such Holder with a sufficient number of copies of the Foundation or its counsel expressly for use thereinsame. In connection with an Underwritten Offeringunderwritten offering, the Company shall will also indemnify the underwriters thereof, their officersofficers and directors, directors and agents and each Person person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriters to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale Holders of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this AgreementSecurities.
(b) In connection with any registration statement in which a Holder of Registrable Securities pursuant to this Agreementis participating, the Foundation shall furnish to the Company and any underwriter in writing each such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and Holder agrees to indemnify and hold harmless harmless, to the extent permitted by law, the Company, any underwriter, each such party's officers and the directors and officers of the Company, the underwriters participating in the offering, the underwriters' directors and officers, and each Person person, if any, who controls each such party (within the meaning of Section 15 of the Securities Act Act) the Company or Section 20 of the Exchange Act), and underwriters against any agent or investment adviser thereof against all losses, claims, damages, liabilities liabilities, and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statementregistration statement under which Registrable Securities owned by such Holder were registered under the Securities Act, or in any Prospectus related prospectus or preliminary Prospectusprospectus, or any amendment thereof or supplement to any of the foregoingthereto, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus prospectus, or a preliminary Prospectusprospectus, in the light of the circumstances then existingunder which they were made) not misleading, but only to the extent that any such untrue statement or omission is made contained in reliance on and in conformity with any information or affidavit with respect to the Foundation such Holder furnished to the Company by such Holder expressly for use therein or any underwriter such untrue statement or omission relates to such Holder or such Holder's plan of distribution and such Holder failed to furnish such information to the Company upon request, or arising out of the Holder's failure to deliver a copy of the applicable registration statement or prospectus (exclusive of the documents, if any, from which information is incorporated by reference) after the Foundation or its counsel specifically for inclusion thereinCompany has furnished such Holder with a sufficient number of copies of the same. Notwithstanding the foregoing provisions of this Section 13(b6(b), the Foundation indemnification required from any Holder shall not be liable limited to the Companyamount of the proceeds received by such Holder from the sale of the Registrable Securities under the registration statement to which the indemnification claim relates. The Company and, any underwriterto the extent customary in underwriting agreements at the time, its directors and officers and each such parties' officers or directorsperson, any other Person if any, who controls any such party (within the meaning of Section 15 the Securities Act) the Company, shall be entitled to receive indemnities from underwriters, selling brokers, dealer managers, and similar securities industry professionals participating in the distribution to the same extent as provided above with respect to information so furnished by such persons specifically for inclusion in any prospectus or registration statement, or the failure by such underwriters, selling brokers, dealer managers, and similar securities industry professionals to deliver a copy of the Securities Act applicable registration statement or Section 20 prospectus (exclusive of the Exchange Act), or any agent or investment advisor thereofdocuments, if any, from which information is incorporated by reference) after the Foundation had provided information curing any untrue statement or omission in time reasonably Company has furnished such persons with a sufficient to prevent number of copies of the inclusion of such untrue statement or omission in the Registration Statementsame.
(c) Any Person person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party person of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may person will claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of Agreement and permit the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notifiedsituated, to assume the defense thereof, of such claim with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from . If the indemnifying party to such indemnified party of its election so elects to assume the defense thereofof a claim, the indemnifying party it shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) If the indemnifying party shall is not have employed counsel reasonably satisfactory to such indemnified party to take charge of entitled to, or elects not to, assume the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure claim, it will not be obligated to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case pay the fees and expenses of more than one counsel or firm with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld. If the failure of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by any person to give prompt notice to the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties any claim with respect to which it seeks indemnification prejudices such indemnifying party, such indemnifying party shall be paid by relieved of its obligation to indemnify such person to the indemnified partiesextent that such indemnifying party has been prejudiced. No indemnified indemnifying party shall will consent to entry of any judgment or enter into any settlement without agreement which does not include as an unconditional term thereof the consent (which consent, giving by the claimant or plaintiff to such indemnified party of a release from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partylitigation.
(d) If the indemnification from the indemnifying party provided for in this Section 11 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities liabilities, or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and liabilities, or expenses in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnifying party and the indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement statements of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' relative intent, knowledge, access to information information, and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations limitation set forth in Section 11(c) hereof6(c), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d6(d) were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (aA) The Company shall indemnify and hold harmless each Initial Purchaser, each Holder, each underwriter who participates in an offering of the Foundation, its officers and directorsRegistrable Securities, and each Person, if any, who controls any agent of such parties within the meaning of Section 15 of the Securities Act (each an "Indemnified Party") from and against any and all losses, claims, damages or investment adviser thereof against all liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law and shall reimburse each such Indemnified Party for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) as and when incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions, insofar as such losses, claims, damages, liabilities and liabilities, expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising actions arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, or in a Shelf Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) under which they were made, not misleading; provided, except however, that the indemnity agreement contained in each case insofar this Section 4 as the same arise to any Indemnified Party shall not apply to any such losses, claims, damages, liabilities, expenses or actions arising out of of, or are based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance on upon and in conformity with information furnished in writing to the Company by such Indemnified Party expressly for use in connection with the preparation of a Shelf Registration Statement or the related Prospectus or any amendment or supplement to either thereof, or arising out of, or based upon, statements in or omissions from the part of the Shelf Registration Statement which shall constitute the Statement of Eligibility and Qualification of the Trustee under the TIA; and provided further, that the indemnity agreement contained in this Section 4 with respect to the Foundation furnished to the Company by the Foundation related Prospectus or its counsel expressly for use therein. In connection with an Underwritten Offering, any amendment or supplement thereto (if the Company shall indemnify have furnished any amendment or supplement thereto) shall not inure to the underwriters thereofbenefit of any Indemnified Party on account of any such losses, claims, damages, liabilities, expenses or actions arising from the sale of Registrable Securities to any person if a copy of the related Prospectus (exclusive of any documents incorporated by reference) shall not have been given or sent to such person by or on behalf of such Indemnified Party with or prior to the written confirmation of the sale involved unless, with respect to the delivery of any amendment or supplement to the Prospectus, the alleged omission or alleged untrue statement was not corrected in such amendment or supplement at the time of such written confirmation. The indemnity agreement of the Company contained in this Section 4 shall remain operative and in full force and effect regardless of any termination of this Agreement or of any investigation made by or on behalf of any Indemnified Party, and shall survive the registration of the Registrable Securities.
(B) Each Holder shall indemnify, defend and hold harmless the Company and any underwriter and other selling Holder, and their officersrespective managers, directors officers and agents directors, and each Person person who controls such underwriters (the Company or any underwriter or any other selling Holder within the meaning of Section 15 of the Securities Act Act, from and against any and all losses, claims, damages or Section 20 of the Exchange Act) liabilities, joint or several, to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities which they or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of them may become subject under the Securities Act or Section 20 any other statute or common law and shall reimburse each of the Exchange Act), under this Section 11 them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) as and when incurred by them in connection with investigating any such losslosses, claimclaims, damagedamages or liabilities or in connection with defending any actions, liability (insofar as such losses, claims, damages, liabilities, expenses or action or proceeding in respect thereof) or expense that arises actions arise out of an or are based upon any untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any a Shelf Registration Statement, any Prospectus Statement or preliminary the related Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectustherein, in light of the circumstances then existing) under which they were made, not misleading, but only to the extent that any if such untrue statement or omission is was made in reliance on upon and in conformity with information with respect to the Foundation furnished in writing to the Company by or on behalf of such Holder, expressly for use in connection with the preparation of a Shelf Registration Statement or the related Prospectus or any underwriter by amendment or supplement to either thereof. The indemnity agreement of the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions respective Holders contained in this Section 4 shall remain operative and in full force and effect regardless of any termination of this Section 13(b), the Foundation shall not be liable to Agreement or of any investigation made by or on behalf of the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act selling Holder, or Section 20 of the Exchange Act)their respective managers, directors or officers, or any agent or investment advisor thereofsuch controlling person, if and shall survive the Foundation had provided information curing registration of the Registrable Securities; provided, however, that, no such Holder shall be liable for any untrue statement or omission claims hereunder in time reasonably sufficient excess of the amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to prevent the inclusion of such untrue statement or omission in the a Shelf Registration Statement.
(cC) Any Person entitled to indemnification hereunder agrees to give prompt written notice to The Company and the indemnifying party after Holders each shall, upon the receipt by such indemnified party of any written notice of the commencement of any actionaction against it or any person controlling it as aforesaid, suitin respect of which indemnity may be sought on account of any indemnity agreement contained herein, proceeding promptly give written notice of the commencement thereof to the party or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that parties against whom indemnity shall be sought hereunder, but the failure to give notify such notification indemnifying party or parties of any such action shall not affect the obligations of the relieve such indemnifying party pursuant to this Section 11 except or parties from any liability hereunder to the extent the such indemnifying party shall have been actually or parties is/are not materially prejudiced as a result of such failure)failure to notify and in any event shall not relieve such indemnifying party or parties from any liability that it or they may have to the indemnified party otherwise than on account of such indemnity agreement. In case such notice of any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofso given, the such indemnifying party shall be entitled to participate therein andat its own expense in the defense, or, if it so elects, to the extent that it shall wish, jointly assume (in conjunction with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (iparties) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of action, in which event such action (so long as such failure to employ defense shall be conducted by counsel is not the result of an unreasonable determination chosen by such indemnifying party or parties and satisfactory to the indemnified party that or parties who shall be defendant or defendants in such action, and such defendant or defendants shall bear the fees and expenses of any additional counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or retained by them; but if the indemnifying party shall elect not have demonstrated to assume the defense of such action, such indemnifying party will reimburse such indemnified party or parties for the reasonable satisfaction fees and expenses of any counsel retained by them; provided, however, if the defendants in any such action (including impleaded parties) include both the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both and the indemnifying party and such indemnified party and such indemnified counsel for the indemnifying party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to a conflict of interest involved in the indemnifying party which, if representation by a single counsel of both the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such the indemnified party or parties shall have the right to employ select separate counsel, satisfactory to the indemnifying party, whose reasonable fees and expenses shall be paid by such indemnifying party, to participate in which case the defense of such action on behalf of such indemnified party or parties (it being understood, however, that the indemnifying party shall not be liable for the fees and expenses of more than one counsel or firm of separate counsel (plus one in addition to local or regulatory counsel or firm of counsel) selected by a majority in interest of representing the indemnified parties shall be borne by the indemnifying party who are parties to such action). The Company and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement Holders each agree that without the consent (which other party's prior written consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, which consent shall not be unreasonably withheld, it will not settle, compromise or consent to the entry of any judgment in any claim in respect of which indemnification may be sought under the indemnification provisions of this Agreement, unless such settlement, compromise or consent (i) includes an unconditional release of each indemnifying such other party from all liability arising out of such claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such other party.
(dD) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to subparagraph (a) or (b) above shall be unenforceable under applicable law by an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall each indemnifying party agrees to contribute to the amount paid or payable by such indemnified party as a result of such with respect to any and all losses, claims, damages, liabilities and expenses for which each such indemnification provided for in subparagraph (a) or (b) above shall be unenforceable, in such proportion as shall be appropriate to reflect (i) the relative benefits received by each indemnifying party on the one hand and the indemnified party on the other hand from the offering of the Registrable Securities pursuant to this Agreement, (ii) if an allocation solely on the basis provided by clause (i) is not permitted by applicable law or is inequitable or against public policy, 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 each indemnifying party on the one hand and the indemnified party on the other hand in connection with the actions statements or omissions which have resulted in such losses, claims, damages, liabilities and expenses, as well as expenses and (iii) any other relevant equitable considerations. The relative fault of such indemnifying party and ; provided, however, that no indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was indemnifying party not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11Relative 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 such indemnifying parties shall indemnify each party or the indemnified party and each such party's relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and each of the fullest extent provided in Section 11(aHolders agree that it would not be just and equitable if contributions pursuant to this paragraph (d) were to be determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or by any other method of allocation which does not taken account of the equitable consideration provided for in this Section 11(d).
(e) The referred to above. Notwithstanding the provisions of this Section 11 4, no Holder shall be required to contribute in addition excess of the amount equal to the excess of (i) the net proceeds received by such Holder from the sale of Registrable Securities by it to Eligible Holders, over (ii) the amount of any liability damages which such Holder has otherwise been required to pay by reason of any party may have such untrue or alleged untrue statement or omission or alleged omission. The obligations of each Holder to any other party contribute pursuant to this Section 4 are several and not joint and shall survive any termination not exceed the same proportion of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective all contributions of any investigation made by or on behalf of an indemnified party, so long Holders required hereunder as such indemnified party Holder's Registrable Securities sold pursuant to the Shelf Registration Statement is not guilty of acting in a fraudulent, reckless or grossly negligent mannerthe total amount of Registrable Securities sold pursuant to the Shelf Registration Statement.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company shall shall, without ------------------------------ limitation as to time, indemnify and hold harmless harmless, to the Foundationfull extent permitted by law, its officers and each holder of Registrable Securities, the officers, directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and employees of each of them, each Person who controls each such underwriters holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the officers, directors, agents and employees of each such controlling person and any financial or investment adviser (each, an "Indemnified Party"), ----------------- to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, actions or proceedings (whether commenced or threatened) reasonable costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (including reasonable expenses of investigation) (collectively, "Losses"), as incurred, arising out of ------ or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or form of prospectus or in any amendment or supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent that the same arise out of or are based upon information furnished in writing to the Company by such Indemnified Party or the related holder of Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided, however, that the -------- ------- Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (underwriters within the meaning of Section 15 of the Securities Act or Section 20 of to the Exchange Act), under this Section 11 for extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the any preliminary Prospectus prospectus if the Foundation, or other (i) such Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for from which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofLosses arise, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any prospectus would have corrected such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and (iii) the Company has complied with its obligations under Section 5.4(c). No Person guilty Each -------------- indemnity and reimbursement of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party costs and shall survive any termination of this Agreement. The indemnification provided by this Section 11 expenses shall remain in full force and effect irrespective regardless of any investigation made by or on behalf of an such indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, and shall indemnify cause each of its Subsidiaries to, jointly and severally, without limitation as to time, indemnify, defend and hold harmless harmless, to the Foundationfull extent permitted by law, its officers and each holder of Registrable Securities, the partners, members, officers, directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and employees of each of them, each Person who controls each such underwriters holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) ), the partners, members, officers, directors, agents and employees of each such controlling person and any financial or investment adviser (each, a “Covered Person”), to the same fullest extent lawful, from and against any and all losses, claims, damages, liabilities, actions or proceedings (whether commenced or threatened), costs (including, without limitation, costs of preparation and attorneys’ fees) and expenses (including expenses of investigation) (collectively, “Losses”), as provided above with respect incurred, arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or form of prospectus or in any amendment or supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the indemnification extent that the same arise out of or are based upon information furnished in writing to the Foundation. Notwithstanding Company by such Covered Person or the foregoing provisions related holder of this Section 11(a)Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided, that the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (underwriters within the meaning of Section 15 of the Securities Act or Section 20 of to the Exchange Act), under this Section 11 for extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the any preliminary Prospectus prospectus if the Foundation, or other (A) such Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission and (C) the Company has complied with its obligations under Section 5D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any Registration Statement provided for under this Section 5 is made through underwriters, (x) no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence and (y) the Company agrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 5F with respect to the indemnification of the holders of Registrable Securities; provided, that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of the Registrable Securities to such Person and if such statement or omission was corrected in such amended or supplemented final Prospectus prospectus prior to such written confirmation and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance underwriter was provided with this Agreementsuch amended or supplemented final prospectus.
(b) In connection with any registration Registration Statement in which a holder of Registrable Securities pursuant to this Agreementis participating, the Foundation such holder, or an authorized officer of such holder, shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, information regarding such holder as the Company or any underwriter reasonably requests for use in the connection with any Registration Statement relating or prospectus and agrees, severally and not jointly, to such registration or the related Prospectus and agrees to indemnify indemnify, defend and hold harmless to the full extent permitted by law, the Company, any underwriterits directors, each such party's officers officers, agents and directors and employees, each Person who controls each such party the Company (within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act), and any agent the partners, members, directors, officers, agents or investment adviser thereof employees of such controlling persons, from and against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation Losses arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusprospectus, or any amendment or supplement to any form of the foregoingprospectus, or (ii) arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, to the extent, but only to the extent extent, that any such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to was relied upon by the Company in preparation of such Registration Statement, prospectus or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions form of this Section 13(b)prospectus; provided, the Foundation that such holder of Registrable Securities shall not be liable in any such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any underwriter, each such parties' officers or directors, any other Person who controls any such party (within holder of Registrable Securities hereunder be greater in amount than the meaning of Section 15 dollar amount of the Securities Act or Section 20 proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Exchange Act), Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion on behalf of such untrue statement or omission in the Registration Statementindemnified party.
(c) Any If any Person shall be entitled to indemnification indemnity hereunder agrees to (an “Indemnified Party”), such Indemnified Party shall give prompt written notice to the indemnifying party after or parties from which such indemnity is sought (the receipt by such indemnified party of any written notice “Indemnifying Parties”) of the commencement of any action, suit, proceeding or investigation or written threat thereof made in writing for (a “Proceeding”) with respect to which such indemnified party may claim Indemnified Party seeks indemnification or contribution pursuant to this Section 11 (provided hereto; provided, that the failure to give such notification so notify the Indemnifying Parties shall not affect relieve the obligations of the indemnifying party pursuant to this Section 11 Indemnifying Parties from any obligation or liability except to the extent that the indemnifying party Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall have been actually prejudiced as a result the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such failure). In case Proceeding, to assume, at the Indemnifying Parties’ expense, the defense of any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofProceeding, with counsel reasonably satisfactory to such indemnified party Indemnified Party; provided, that an Indemnified Party (who if more than one such Indemnified Party is named in any Proceeding) shall nothave the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, except with but the consent fees and expenses of such counsel shall be at the indemnified party, be counsel expense of such Indemnified Party or parties unless: (i) the Indemnifying Parties agree to pay such fees and expenses; (ii) the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so Indemnifying Parties fail promptly to assume the defense thereof, the indemnifying party shall not be liable of such Proceeding or fail to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed employ counsel reasonably satisfactory to such indemnified party Indemnified Party or parties; or (iii) the named parties to take charge any such Proceeding (including any impleaded parties) include both such Indemnified Party or parties and the Indemnifying Parties or an Affiliate of the defense of Indemnifying Parties or such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defenseIndemnified Parties, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal one or more defenses available to it which such Indemnified Party that are different from or additional to those available to the indemnifying party whichIndemnifying Parties, in which case, if such Indemnified Party notifies the indemnifying party and such indemnified party were Indemnifying Parties in writing that it elects to be represented by employ separate counsel at the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution expense of the defenses available to such indemnified party, then such indemnified party Indemnifying Parties; the Indemnifying Parties shall not have the right to employ separate counselassume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in which case connection with any one such Proceeding or separate but substantially similar or related Proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one together with appropriate local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne at any time for such Indemnified Party. Whether or not such defense is assumed by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties Indemnifying Parties, such Indemnifying Parties or Indemnified Party shall not be paid by the indemnified partiessubject to any liability for any settlement made without its or their consent (but such consent shall not be unreasonably withheld). No indemnified party The Indemnifying Parties shall not consent to entry of any judgment or enter into any settlement which (x) provides for other than monetary damages without the consent of the Indemnified Party (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, consent shall not be unreasonably withheldwithheld or delayed) or (y) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of each indemnifying partya release, in form and substance satisfactory to the Indemnified Party, from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to indemnification hereunder.
(d) If the indemnification from the indemnifying party provided for in this Section 11 5F is unavailable to an indemnified party hereunder Indemnified Party or is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities or expenses referred to thereinwhich this Section 5F would otherwise apply by its terms, then the indemnifying partyeach applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have an obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party, on the one hand, and indemnified party such Indemnified Party, on the other hand, in connection with the actions which actions, statements or omissions that resulted in such losses, claims, damages, liabilities and expenses, Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party Indemnifying Party, on the one hand, and indemnified party Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, include any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 5F(a) or proceeding5F(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d5F(d) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 11(d5F(d). Notwithstanding the provisions of this Section 11(d5F(d), no underwriter shall be required to contribute any amount in excess an Indemnifying Party that is a holder of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public net proceeds received by such Indemnifying Party exceeds the amount of any damages which the Foundation that such Indemnifying Party has otherwise been required to pay by reason reasons of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The Each Securityholder and the Company agree that such Person shall not permit any amendment to the Certificate of Incorporation or the by-laws of the Company that would reduce the scope of the indemnification or limitation of liability provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannercontained therein.
Appears in 1 contract
Sources: Securityholders Agreement (Universal Hospital Services Inc)
Indemnification; Contribution. (a) Indemnification by the ----------------------------- ---------------------- Company. The Company shall agrees to indemnify and hold harmless each Holder, each ------- Person, if any, who controls such Holder within the Foundationmeaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, its officers and the officers, directors, agents, general and limited partners, and employees of each Holder and each such controlling person from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities liabilities, and reasonable expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by such party pursuant to any actual directly or threatened action, suit, proceeding or investigation indirectly arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus registration statement or preliminary Prospectus, prospectus relating to the Registrable Securities or in any amendment or supplement to thereto or in any of the foregoingpreliminary prospectus, or (ii) arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same such losses, claims, damages, liabilities or reasonable expenses arise out of of, or are based upon, any such untrue statement or omission made in reliance on and in conformity with or allegation thereof based upon information with respect to the Foundation furnished to the Company by the Foundation such Holder or its counsel on such Holder's behalf expressly for use therein. In ; and the Company will reimburse such Indemnified Party for any legal or other expenses reasonably incurred by them in connection with an Underwritten Offeringenforcing their rights hereunder, the Company shall indemnify the underwriters thereofprovided, their officershowever, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above that with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a)any untrue statement -------- ------- or omission or alleged untrue statement or omission made in any preliminary prospectus, the Company indemnity agreement contained in this paragraph shall not be liable apply to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense results from the fact that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf a current copy of the Foundation, failed to send prospectus was not sent or deliver a copy of a final Prospectus given to the Person Persons asserting the claim any such loss, claim, damage, liability or expense at or prior to the written confirmation of the sale of the Registrable Securities concerned to such Person and if it is determined that (i)(A) it was the responsibility of such statement or omission Holder to provide such person with a current copy of the prospectus, (B) such Holder was corrected in such final Prospectus and provided with a current copy of the Company had previously and timely furnished sufficient copies thereof prospectus prior to the Foundation in accordance with this Agreement.
written confirmation of sale and (bC) In connection with any registration such current copy of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to prospectus would have cured the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating defect giving rise to such registration loss, claim, damage, liability or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, expense or (ii) the actual or potential defendants in, or targets of, Holder provided a prospectus to any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result Person in a conflict of interest for such counsel or materially prejudice the prosecution violation of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 last paragraph of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) 3 hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall will indemnify and hold harmless each seller of Registrable Securities under the FoundationRegistration Statement and such seller's agents, its officers employees, directors and directorsofficers, from and against any agent or investment adviser thereof against all losses, claims, damagesdamages or liabilities, joint or several, to which such seller may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any the Registration Statement, any Prospectus preliminary prospectus or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement to any of the foregoingthereof, or (ii) any the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out or (iii) any violation of or are based uponany applicable securities law, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to provided, however, that the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall will not be liable in any such case if and to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for extent that any such loss, claim, damage, damage or liability (or action or proceeding in respect thereof) or expense that arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in the preliminary Prospectus if the Foundation, reliance upon and in conformity with information furnished by such seller or other Person an authorized officer of any such seller acting on behalf of such seller and each other person, if any, who controls such seller within the Foundationmeaning of the Securities Act, or in writing by an authorized officer of the seller of Registrable Securities or by an officer or duly authorized agent or employee of such seller of Registrable Securities specifically for use in such Registration Statement or Prospectus, and, provided further, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue or alleged untrue statement or omission or an alleged omission made in any preliminary prospectus or final prospectus if (1) the Company delivered to such Holder the final prospectus or prospectus supplement, (2) such Holder failed to send or deliver a copy of a the final Prospectus to the Person asserting the claim prospectus or prospectus supplement with or prior to the delivery of written confirmation of the sale of the Registrable Securities to Securities, and (3) the final prospectus or prospectus supplement would have corrected such Person and such untrue statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementomission.
(b) In connection with any registration Each seller of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in under the Registration Statement relating to such registration or the related Prospectus Statement, severally and agrees to not jointly, will indemnify and hold harmless the Company, any underwritereach person, each such party's officers and directors and each Person if any, who controls each such party (the Company within the meaning of Section 15 the Securities Act, each officer of the Securities Act or Section 20 Company who signs the Registration Statement and each director of the Exchange Act)Company, and any agent or investment adviser thereof against all losses, claims, damagesdamages or liabilities, joint or several, to which the Company or such officer, director or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact by such seller contained in any the Registration Statement, any Prospectus or preliminary Prospectuscontained therein, or any amendment or supplement to any of the foregoingthereof, or (ii) any the omission or alleged omission by such seller to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but or (iii) any violation of any applicable securities law by such seller, and will pay the legal fees and other expenses of the Company and each such officer, director, and controlling person incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action, provided, however, that such seller will be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission is or alleged omission made in reliance on upon and in conformity with information with respect to the Foundation furnished in writing to the Company or any underwriter by the Foundation or its counsel such seller specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)use in such Registration Statement or prospectus; provided, the Foundation further, however, that such seller shall not be liable only to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 extent of the Securities Act or Section 20 of net proceeds received by such seller in the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of offering which contained such untrue statement or omission in the Registration Statementomission.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party hereunder of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may shall, if a claim indemnification or contribution pursuant in respect thereof is to this Section 11 (provided that failure to give such notification shall not affect the obligations of be made against the indemnifying party pursuant hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability that it may have to such indemnified party other than under this Section 11 except 4 and shall only relieve it from any liability that it may have to such indemnified party under this Section 4 if and to the extent the indemnifying party shall have been actually is prejudiced as a result of by such failure)omission. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein in and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume and undertake the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party)and, and after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 4 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoingthereof; provided, however, that, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, in any such action include both the indemnified party and the indemnifying party and such indemnified party and such the indemnified party shall have reasonably concluded that there may be legal reasonable defenses available to it which are different from or additional to those available to the indemnifying party which, or if the indemnifying party and such interests of the indemnified party were reasonably may be deemed to be represented by conflict with the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution interests of the defenses available to such indemnified indemnifying party, then such the indemnified party shall have the right to employ select a separate counselcounsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred, it being understood, however, that the indemnifying party shall not, in which case connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one counsel or separate firm of attorneys (together with appropriate local counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne as required by the indemnifying party and the fees and expenses local rules of such jurisdiction) at any time for all other counsel retained by the indemnified parties shall be paid by the such indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any Holder exercising rights under this Agreement, or any controlling person of any such Holder, makes a claim for indemnification from the indemnifying party provided for in pursuant to this Section 11 4 but it is unavailable to an indemnified party hereunder judicially determined that such indemnification may not be enforced in respect such case notwithstanding the fact that this Section 4 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any such selling Holder or any such controlling person in circumstances for which indemnification is provided under this Section 4; then, and in each such case, the Company and such Holder will contribute to the aggregate losses, claims, damages, damages or liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses which they may be subject (after contribution from others) in such proportion as so that such Holder is appropriate responsible for the portion represented on the one hand (A) by the percentage that (i) the public offering price of its Registrable Securities offered by the Registration Statement less (ii) the purchase price deemed to reflect have been originally paid by such Holder in the Private Placement for such shares of Registrable Securities, bears to the public offering price of all securities offered by the Registration Statement, and (B) on the other hand, the relative fault of such Holder, other Holders or the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified partyCompany, and the parties' relative intentCompany is responsible for the remaining portion; provided, knowledgehowever, access to information and opportunity to correct or prevent that, in any such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d)case, 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue person or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person person or entity who was not guilty of such fraudulent misrepresentation. If indemnification is available under Notwithstanding the provisions of this Section 114(d), the indemnifying parties Holders shall indemnify each indemnified party not be required to contribute any amount in excess of the net amount received by such Holder pursuant to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard sale of such Holder's Registrable Securities to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)public.
(e) The provisions No indemnifying party shall, without the prior written consent of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an the indemnified party, so long as effect any settlement of any pending or threatened action, suit or 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 is not guilty from all liability on claims that are the subject matter of acting in a fraudulentsuch action, reckless suit or grossly negligent mannerproceeding.
Appears in 1 contract
Sources: Registration Rights Agreement (Great Wolf Resorts, Inc.)
Indemnification; Contribution. (a) The Company shall, and shall indemnify cause each of its Subsidiaries to, jointly and severally, without limitation as to time, indemnify, defend and hold harmless harmless, to the Foundationfull extent permitted by Law, its officers and each holder of Registrable Securities, the partners, members, officers, directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and employees of each of them, each Person who controls each such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any the partners, members, officers, directors, agents and employees of each such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company controlling person and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent financial or investment adviser thereof (each, a “Covered Person”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities liabilities, actions or proceedings (whether commenced or threatened), costs (including, without limitation, costs of preparation and attorneys’ fees) and expenses (including reasonable attorneys' fees and expensesexpenses of investigation) incurred by each such party pursuant to any actual or threatened action(collectively, suit“Losses”), proceeding or investigation as incurred, arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus prospectus or preliminary Prospectus, form of prospectus or in any amendment or supplement to supplements thereto or in any of the foregoingpreliminary prospectus, or (ii) arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only except to the extent that the same arise out of or are based upon information furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided, that the Company shall not be liable to any Person who participates as an underwriter (other than solely due to such Person’s status as an control person of the Company) in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission and (C) the Company has complied with its obligations under Section 3D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any Registration Statement provided for under this Section 3 is made through underwriters, (x) no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence and (y) the Company agrees to enter into an underwriting agreement in reliance on customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in conformity with information this Section 3F with respect to the Foundation furnished indemnification of the holders of Registrable Securities; provided, that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus.
(b) In connection with any Registration Statement in which a holder of Registrable Securities is participating, such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any Registration Statement or any underwriter prospectus and agrees, severally and not jointly, to indemnify, defend and hold harmless to the full extent permitted by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)Law, the Foundation shall not be liable to the Company, any underwriterits directors, officers, agents and employees, each such parties' officers or directors, any other Person who controls any such party the Company (within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act), and the partners, members, directors, officers, agents or any agent employees of such controlling persons, from and against all Losses arising out of or investment advisor thereof, if the Foundation had provided information curing based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus, or form of prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in time reasonably sufficient to prevent the inclusion preparation of such untrue statement or omission in the Registration Statement, prospectus or form of prospectus; provided, that such holder of Registrable Securities shall not be liable in any such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party.
(c) Any If any Person shall be entitled to indemnification indemnity hereunder agrees to (an “Indemnified Party”), such Indemnified Party shall give prompt written notice to the indemnifying party after or parties from which such indemnity is sought (the receipt by such indemnified party of any written notice “Indemnifying Parties”) of the commencement of any action, suit, proceeding or investigation or written threat thereof made in writing for (a “Proceeding”) with respect to which such indemnified party may claim Indemnified Party seeks indemnification or contribution pursuant to this Section 11 (provided hereto; provided, that the failure to give such notification so notify the Indemnifying Parties shall not affect relieve the obligations of the indemnifying party pursuant to this Section 11 Indemnifying Parties from any obligation or liability except to the extent that the indemnifying party Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall have been actually prejudiced as a result the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such failure). In case Proceeding, to assume, at the Indemnifying Parties’ expense, the defense of any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofProceeding, with counsel reasonably satisfactory to such indemnified party Indemnified Party; provided, that an Indemnified Party (who if more than one such Indemnified Party is named in any Proceeding) shall nothave the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, except with but the consent fees and expenses of such counsel shall be at the indemnified party, be counsel expense of such Indemnified Party or parties unless: (i) the Indemnifying Parties agree to pay such fees and expenses; (ii) the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so Indemnifying Parties fail promptly to assume the defense thereof, the indemnifying party shall not be liable of such Proceeding or fail to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed employ counsel reasonably satisfactory to such indemnified party Indemnified Party or parties; or (iii) the named parties to take charge any such Proceeding (including any impleaded parties) include both such Indemnified Party or parties and the Indemnifying Parties or an Affiliate of the defense of Indemnifying Parties or such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defenseIndemnified Parties, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal one or more defenses available to it which such Indemnified Party that are different from or additional to those available to the indemnifying party whichIndemnifying Parties, in which case, if such Indemnified Party notifies the indemnifying party and such indemnified party were Indemnifying Parties in writing that it elects to be represented by employ separate counsel at the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution expense of the defenses available to such indemnified party, then such indemnified party Indemnifying Parties; the Indemnifying Parties shall not have the right to employ separate counselassume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in which case connection with any one such Proceeding or separate but substantially similar or related Proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one appropriate local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne at any time for such Indemnified Party. Whether or not such defense is assumed by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties Indemnifying Parties, such Indemnifying Parties or Indemnified Party shall not be paid by the indemnified partiessubject to any liability for any settlement made without its or their consent (but such consent shall not he unreasonably withheld or delayed). No indemnified party The Indemnifying Parties shall not consent to entry of any judgment or enter into any settlement which (x) provides for other than monetary damages without the consent of the Indemnified Party (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, consent shall not be unreasonably withheldwithheld or delayed) or (y) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of each indemnifying partya release, in form and substance satisfactory to the Indemnified Party, from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to indemnification hereunder.
(d) If the indemnification from the indemnifying party provided for in this Section 11 3F is unavailable to an indemnified party hereunder Indemnified Party or is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities or expenses referred to thereinwhich this Section 3F would otherwise apply by its terms, then the indemnifying partyeach applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have an obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party, on the one hand, and indemnified party such Indemnified Party, on the other hand, in connection with the actions which actions, statements or omissions that resulted in such losses, claims, damages, liabilities and expenses, Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party Indemnifying Party, on the one hand, and indemnified party Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, include any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 3F(a) or proceeding3F(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d3F(d) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 11(d3F(d). Notwithstanding the provisions of this Section 11(d3F(d), no underwriter shall be required to contribute any amount in excess an Indemnifying Party that is a holder of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public net proceeds received by such Indemnifying Party exceeds the amount of any damages which the Foundation that such Indemnifying Party has otherwise been required to pay by reason reasons of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available 3G Rules 144 and 144A. The Company shall file the reports required to be filed by it under this Section 11the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder and shall take such further action as any holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell (subject to any restrictions on Transfers hereunder) Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 and Rule 144A. Upon the request of any holder of Registrable Securities, the indemnifying parties Company shall indemnify each indemnified party deliver to the fullest extent provided in Section 11(a) or (b) hereof, such holder a written statement as the case may be, without regard to the relative fault of whether it has complied with such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)requirements.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall LSC Parent shall, and it hereby agrees to, (i) indemnify and hold harmless the Foundation, its officers and directorseach Registration Equityholder in any offering or sale of Registrable Securities, and such Registration Equityholder’s partners, members, managers and Affiliates and each Person, if any, who controls any agent of the foregoing Persons within the meaning of the Securities Act or investment adviser thereof the Exchange Act, from and against any and all losses, claims, damages, liabilities or liabilities, or any actions or proceedings (whether commenced or threatened) in respect thereof and costs and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement reached in accordance with the requirements for consent as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus or preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement to any of the foregoingthereto, or (ii) any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus any preliminary or a preliminary final Prospectus, including any Free Writing Prospectus, incorporated into such Registration Statement, in the light of the circumstances then existing) in which they were made), not misleading; and (ii) reimburse upon written demand each indemnified party for any reasonable and documented legal or other out-of-pocket expenses reasonably incurred by such indemnified party in connection with investigating or defending (or preparing to defend) any such Claims; provided, except however, that LSC Parent shall not be liable to an indemnified party in each any such case insofar as to the same extent that any such Claims arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of upon an untrue statement or alleged untrue statement or omission or alleged omission made in the preliminary Prospectus if the Foundationsuch Registration Statement, or other Person preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to LSC Parent about a Registration Equityholder by or on behalf of such indemnified party expressly for use therein, or if the Foundation, failed to send or deliver a copy of a final Prospectus Registration Equityholder sold securities to the Person asserting the claim alleging such Claims without sending or giving, at or prior to the written confirmation of the sale such sale, a copy of the Registrable Securities applicable Prospectus (excluding any documents incorporated by reference therein) or of the applicable Prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if LSC Parent had previously furnished copies thereof to such Person Registration Equityholder a reasonable period of time prior to such sale and such Prospectus corrected such untrue statement or alleged untrue statement or omission was corrected or alleged omission made in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this AgreementRegistration Statement.
(b) In connection with any registration of Registrable Securities pursuant to this AgreementEach Registration Equityholder shall, the Foundation shall furnish to the Company and any underwriter in writing such informationhereby agrees to, including the name, address severally and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to not jointly (i) indemnify and hold harmless the Company, LSC Parent in any underwriteroffering or sale of Registrable Securities, each Director and officer of LSC Parent (including any such party's officers and directors Director or officer who shall sign the applicable Registration Statement) and each Person Person, if any, who controls each such party (any of the foregoing Persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement reached in accordance with the requirements for consent as provided herein), and any agent or investment adviser thereof against all lossesactions or proceedings in respect thereof, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus or preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement to any of the foregoingthereto, or (ii) any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a any preliminary or final Prospectus or a preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement), in the light of the circumstances then existing) in which they were made), not misleading; and (ii) reimburse upon written demand each indemnified party for any reasonable and documented legal or other out-of-pocket expenses reasonably incurred by such indemnified party in connection with investigating or defending (or preparing to defend) any such Claims, but only in each case, to the extent extent, that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission is or alleged omission was made in reliance on upon and in conformity with information with respect about such Registration Equityholder furnished in writing to LSC Parent by or on behalf of such Registration Equityholder expressly for use therein, or if such Registration Equityholder sold securities to the Foundation furnished Person alleging such Claims without sending or giving, at or prior to the Company written confirmation of such sale, a copy of the applicable Prospectus (excluding any documents incorporated by reference therein) or of the applicable Prospectus, as then amended or supplemented (excluding any underwriter documents incorporated by the Foundation or its counsel specifically for inclusion reference therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable if LSC Parent had previously furnished copies thereof to the Company, any underwriter, each Registration Equityholders a reasonable period of time prior to such parties' officers sale and such Prospectus corrected such untrue statement or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any alleged untrue statement or omission or alleged omission made in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder Each Registration Equityholder, on the one hand, and LSC Parent, on the other hand, agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of that if, for any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofreason, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this indemnification provisions contemplated by Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory2.7(a) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (iiSection 2.7(b) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with the actions which respect to statements or omissions that that resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsClaims. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 2.7(c) is not permitted by applicable Requirements of Law, then each indemnifying party shall contribute to the amount paid or payable by a such indemnified party in such proportion as a result is appropriate to reflect not only such relative faults, but also the relative benefits of the lossesindemnifying party and the indemnified party, claimsas well as any other relevant equitable considerations. The relative benefits received by LSC Parent, damageson the one hand, liabilities and expenses referred to above a Registration Equityholder, on the other hand, shall be deemed to include, subject be in the same proportion as the total net proceeds from the offering of securities (net of discounts and commissions but before deducting expenses) giving rise to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred applicable Claim bears to the net proceeds received by such indemnified party in connection Registration Equityholder with any investigation or proceedingrespect to its sale of Registrable Securities giving rise to such Claim. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d2.7(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d2.7(c), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered limitations set forth in Section 2.8) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending (or preparing to the public exceeds the amount of defend) any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionProceeding. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party The Registration Equityholders obligations to the fullest extent contribute as provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)2.7(c) are several and not joint.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Registration Rights Agreement (LSC Communications, Inc.)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless the FoundationHolders, its officers their officers, directors and directorsMembers, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ’ fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation Holders furnished to the Company by the Foundation Holders or its their counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the FoundationHolders. Notwithstanding the foregoing provisions of this Section 11(a13(a), the Company shall not be liable to the FoundationHolders, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 13 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the FoundationHolders, or other Person on behalf of the FoundationHolders, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely namely furnished sufficient copies thereof to the Foundation Holders in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation Holders shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the FoundationHolders, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's ’s officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' ’ fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation Holders furnished to the Company or any underwriter by the Foundation Holders or its their counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation Holders shall not be liable to the Company, any underwriter, each such parties' ’ officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation Holders had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 13 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 13 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 13 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 13 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c13(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d13(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d13(d). Notwithstanding the provisions of this Section 11(d13(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation Holders shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation Holders were offered to the public exceeds the amount of any damages which the Foundation Holders 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 1113, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a13(a) or (bSection 13(b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d13(d).
(e) The provisions of this Section 11 13 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 13 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Registration Rights Agreement
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the Foundationoffering or sale of such securities, its officers (iii) each person, if any, who controls (within themeaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the persons referred to in this clause (iii) being hereinafter referred to as a “controlling person”) and (iv) the respective officers, directors, partners, employees, representatives and agents of any agent such Holder or investment adviser thereof underwriter or any controlling person (any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an “indemnified Person”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and expenses liabilities, judgments or expenses, joint or several (including reasonable attorneys' fees and expensesor actions or proceedings, whether commenced or threatened, in respect thereof) incurred by (collectively, “Claims”), to which such party pursuant to any actual indemnified Person may become subject under either Section 15 of the Securities Act or threatened actionSection 20 of the Exchange Act or otherwise, suit, proceeding or investigation arising insofar as such Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Statement or Prospectus or preliminary Prospectus, (or any amendment or supplement to any of the foregoingthereto), or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except in each case insofar as the same arise out such losses, claims, damages, liabilities, judgments or expenses of or any such indemnified Person; (x) are based upon, caused by any such untrue statement or omission made or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in reliance writing to the Company by or on and in conformity with information behalf of any of such indemnified Person expressly for use therein; (y) with respect to the Foundation furnished preliminary Prospectus, result from the fact that such Holder sold Securities to a person to whom there was not sent or given, at or prior to the Company by written confirmation of such sale, a copy of the Foundation Prospectus, as amended or its counsel expressly for use therein. In connection with an Underwritten Offeringsupplemented, if the Company shall indemnify have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the underwriters use by an indemnified Person of any Prospectus when, upon receipt of a Black-Out Notice or a notice from the Company of the existence of any fact of the kind described in Section 2.5(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof with counsel reasonably satisfactory to the indemnified Persons, it being understood and agreed that the Company’s regular outside counsel is acceptable for such purpose. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, their officersbut the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, directors (ii) the Company shall have failed to assume the defense and agents employ counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are materially different from or additional to those available to the Company, it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company’s prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, which shall not be unreasonably withheld, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person who controls is a party thereto), unless such underwriters settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Registrable Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each person, to the same extent as provided above the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) (x) with respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, (y) with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundationpreliminary Prospectus, any Person who participates as an underwriter in matters which result from the offering fact that such Holder sold Securities to a person to whom there was not sent or sale of Registrable Securities given, at or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale such sale, a copy of the Registrable Securities to such Person and such statement Prospectus, as amended or omission was corrected in such final Prospectus and supplemented, if the Company had shall have previously and timely furnished sufficient copies thereof to the Foundation such Holder in accordance with this Agreement.
Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (bz) such matters which result from the use by an indemnified Person of any Prospectus when, upon receipt of a Black-Out Notice or a notice from the Company of the existence of any fact of the kind described in Section 2.5(b)(iv), the indemnified Person or the related Holder was not permitted to do so, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Registrable Securities covered by such Registration Statement. In connection with case any registration action or proceeding shall be brought against the Company or its directors or officers or any such controlling person in respect of which indemnity may be sought against a Holder of Registrable Securities pursuant to this Agreementcovered by any Registration Statement, such Holder shall have the Foundation shall furnish to rights and duties given the Company and any underwriter in writing such informationSection 2.8(a) (except that the Holder may but shall not be required to assume the defense thereof), including the name, address and the amount Company or its directors or officers or such controlling person shall have the rights and duties given to each Holder by Section 2.9(a). Such indemnity shall remain in full force and effect regardless of Registrable Securities held any investigation made by the Foundation, as or on behalf of any the Company or any underwriter reasonably requests for use in other indemnified Person and shall survive the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, transfer of securities by any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementapplicable Holder.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 2.9 is unavailable to an indemnified party hereunder under Section 2.9(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the indemnifying partycase of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, claims damages, liabilities and liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Registrable Securities or (ii) if such 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 Company and indemnified party such Holder in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such indemnifying party and indemnified party Holder on the other shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company or by such indemnifying party or indemnified party, Holder and the parties' parties relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 11(c2.9(a) hereofand Section 2.9(b), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation action or proceedingclaim. The parties hereto Company and each Holder of Registrable Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 11(d2.9(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d)the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d), 2.9(c) no underwriter Holder (and none of its related indemnified Persons) shall be required to contribute contribute, in the aggregate, any amount in excess of the amount by which the total price at which dollar amount of proceeds received by such Holder upon the sale of the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11The indemnity, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for and contribution provisions contained in this Section 11(d).
(e) The provisions of this Section 11 shall be 2.9 are in addition to any liability which any party the indemnifying person may otherwise have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an the indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerpersons referred to above.
Appears in 1 contract
Indemnification; Contribution. (a) The If any Registrable Securities are included in a registration statement under this Agreement:
11.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless the Foundation, its officers ▇▇. ▇▇▇▇▇ against any and directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and expenses) disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any Registration Statement, any Prospectus preliminary prospectus or preliminary Prospectusfinal prospectus contained therein, or any amendment amendments or supplement to any of the foregoing, or supplements thereto; or
(ii) any The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (not misleading; provided, however, that the indemnification required by this Section 11.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the case of a Prospectus or a preliminary Prospectus, in light consent of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company which consent shall not be unreasonably withheld), nor shall the Company be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 case for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense to the extent that it arises out of an untrue statement or alleged untrue statement or omission or alleged omission is based upon a Violation that occurs in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person reliance upon and such statement or omission was corrected in such final Prospectus and the Company had previously and timely conformity with information furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish writing to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests indemnified party expressly for use in connection with such registration.
11.2. To the Registration Statement relating to such registration or the related Prospectus and agrees to extent permitted by applicable law, ▇▇. ▇▇▇▇▇ shall indemnify and hold harmless the Company, any underwritereach of the directors of the Company, each such party's of the officers and directors and of the Company who shall have signed the registration statement, each Person Person, if any, who controls each such party (the Company within the meaning of Section 15 of the Securities Act or Section 20 Act, any other Selling Holder, any controlling Person of the Exchange Act)any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and expenses) disbursements and reasonable expenses of investigation, incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusViolation, in light of the circumstances then existing) not misleading, but only each case to the extent that such Violation arises out of or is based upon information furnished by ▇▇. ▇▇▇▇▇ in writing expressly for use in connection with such registration; provided, however, that (x) any indemnification required by this Section 11.2 shall not apply to amounts paid in settlement of any such untrue statement loss, claim, damage, liability or omission expense if such settlement is made in reliance on and in conformity with information with respect to effected without the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion thereinconsent of ▇▇. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation ▇▇▇▇▇ (which consent shall not be liable to unreasonably withheld) and (y) in no event shall the Company, amount of any underwriter, each such parties' officers or directors, any other Person who controls any such party (within indemnity under this Section 11.2 exceed the meaning of Section 15 of gross proceeds from the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementapplicable offering received by ▇▇. ▇▇▇▇▇.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party 11.3. Promptly after the receipt by such an indemnified party under this Section 11 of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 11, such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel reasonably satisfactory the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for to the extent of such prejudice but shall not relieve the indemnifying party of any legal liability that it may have to any indemnified party otherwise than pursuant to this Section 11. Any fees and expenses of other counsel or any other expenses, in each case subsequently incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, in connection with the defense as incurred, within thirty (30) days of written notice thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such (regardless of whether it is ultimately determined that an indemnified party were is not entitled to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then indemnification hereunder). Any such indemnified party shall have the right to employ separate counselcounsel in any such action, claim or proceeding and to participate in which case the defense thereof, but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the fees and expenses of all other such additional counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partycounsels).
(d) 11.4. If the indemnification required by this Section 11 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 11:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which that resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof11.1 and Section 11.2, any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) 11.4 were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d11.4(i). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
11.5. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in this Section 11(a) or (b) hereof, as the case may be, 11 without regard to the relative fault of such indemnifying parties party or indemnified party or any other equitable consideration provided for referred to in this Section 11(d)11.4.
(e) 11.6. The provisions obligations of the Company and ▇▇. ▇▇▇▇▇ under this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any the termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Registration Rights Agreement (CDW Computer Centers Inc)
Indemnification; Contribution. (a) The Company shall Issuer of the securities to be registered in the relevant registration shall, and it hereby agrees to, indemnify and hold harmless the FoundationDoCoMo and its respective directors, officers, employees and controlling Persons, if any, and each underwriter, its officers and partners, directors, officers, employees and controlling Persons, if any, in any agent offering or investment adviser thereof sale of the Registrable Securities, against all any losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, "Claims") to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of the Issuer as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, or any Prospectus preliminary or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Issuer shall, and it hereby agrees to, reimburse periodically DoCoMo or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such Claims; provided, however, that the Issuer shall not be liable to any such Person in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, (i) in reliance upon and in conformity with information furnished to the Issuer by DoCoMo or any underwriter or representative of DoCoMo expressly for use therein, or by DoCoMo's failure to furnish the Issuer, upon request, with the information with respect to DoCoMo, or any underwriter or representative of DoCoMo, or DoCoMo's intended method of distribution, that is the subject of the foregoing, untrue statement or omission or (ii) if the Issuer shall sustain the burden of proving that DoCoMo or such underwriter sold securities to the Person alleging such Claims without sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable prospectus (excluding any documents incorporated by reference therein) or of the applicable prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Issuer had previously furnished copies thereof to DoCoMo or such underwriter, and such prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement.
(b) DoCoMo shall, and hereby agrees to (i) indemnify and hold harmless AT&T, with respect to the registration of Current Wireless Tracking Stock, or AT&T Wireless, with respect to the registration of AT&T Wireless Common Stock, its directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Securities, against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement effected with the consent of DoCoMo as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation furnished to AT&T or AT&T Wireless, as the Company case may be, by DoCoMo expressly for use therein, and (ii) periodically reimburse AT&T or AT&T Wireless, as the case may be, for any underwriter legal or other out-of-pocket expenses reasonably incurred by AT&T or AT&T Wireless, as the Foundation case may be, in connection with investigating or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls defending any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementClaim.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under Section 7.6(a) or Section 7.6(b) of any written notice of the commencement of any action, suit, action or proceeding or investigation or threat thereof made in writing for which indemnification under Section 7.6(a) or Section 7.6(b) may be requested, such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give shall notify such notification shall not affect the obligations indemnifying party in writing of the indemnifying party pursuant commencement of such action or proceeding; but the omission so to this Section 11 except to the extent notify the indemnifying party shall not relieve it from any liability which it may have been actually prejudiced as a result to any indemnified party in respect of such failure)action or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and in no event shall such omission relieve the indemnifying party from any other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party and it shall notify the an indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party)and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing; provided, if however, that (i) if the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party fails to take charge of reasonable steps necessary to defend diligently the defense of such action or proceeding within a reasonable time 20 days after receiving notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by from such indemnified party that counsel selected pursuant the indemnified party believes it has failed to the immediately preceding sentence do so; (ii) if such indemnified party who is unsatisfactory) a defendant in any action or if proceeding that is also brought against the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party reasonably shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party that are not available to the indemnifying party; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then then, in any such case, the indemnified party shall have the right to employ separate assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction) and the indemnifying party shall be liable for any expenses therefor (including, without limitation, any such reasonable counsel's fees). If the indemnifying party is not entitled to, in which case or elects not to, assume the defense of a claim, it will not be obligated to pay the fees and expenses of more than one counsel or firm of counsel (plus and one local counsel per jurisdiction) for each indemnified party with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld or regulatory counsel or firm of counsel) selected by a majority in interest delayed. No indemnifying party shall, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, compromise or consent to entry of any judgment or enter into any settlement without agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 7.6(a) or Section 7.6(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent (which consent, or settlement includes an unconditional release of the indemnified party from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relieflitigation, shall does not be unreasonably withheld) subject the indemnified party to any material injunctive relief or other material equitable remedy and does not include a statement or admission of each indemnifying fault, culpability or a failure to act, by or on behalf of the indemnified party.
(d) If DoCoMo, AT&T and AT&T Wireless agree that if, for any reason, the indemnification from the indemnifying party provided for in this Section 11 is provisions contemplated by Sections 7.6(a) or 7.6(b) hereof are unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of of, the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with the actions which resulted in respect to such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsoffering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d7.6(d) were to be determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d7.6(d), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 7.6(c) hereof) any damages which legal or other fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities ActAct or any successor provision thereof) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the Foundationoffering or sale of such securities, its officers (iii) each person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the persons referred to in this clause (iii) being hereinafter referred to as a "controlling person") and (iv) the respective officers, directors, partners, employees, representatives and agents of any agent such Holder or investment adviser thereof underwriter or any controlling person (any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and expenses liabilities, judgments or expenses, joint or several (including reasonable attorneys' fees and expensesor actions or proceedings, whether commenced or threatened, in respect thereof) incurred by (collectively, "Claims"), to which such party pursuant to any actual indemnified Person may become subject under either Section 15 of the Securities Act or threatened actionSection 20 of the Exchange Act or otherwise, suit, proceeding or investigation arising insofar as such Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Statement or Prospectus or preliminary Prospectus, (or any amendment or supplement to any of the foregoingthereto), or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except in each case insofar as the same arise out such losses, claims, damages, liabilities, judgments or expenses of or any such indemnified Person; (x) are based upon, caused by any such untrue statement or omission made or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in reliance writing to the Company by or on and in conformity with information behalf of any of such indemnified Person expressly for use therein; (y) with respect to the Foundation preliminary Prospectus, result from the fact that such Holder sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Blackout Notice or a notice from the Company of the existence of any fact of the kind described in Section 2.4(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defense and employ counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the underwriters thereofwritten consent of the Company. The Company shall not, their officerswithout the prior written consent of each indemnified Person, directors settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and agents not jointly, to indemnify and each Person who controls such underwriters hold harmless the Company and its directors, officers and any person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each person, to the same extent as provided above the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with ---- respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the indemnification extent of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Persongross proceeds, if any, who controls received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as be brought against the Company or its directors or officers or any underwriter reasonably requests for use such controlling person in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning respect of Section 15 which indemnity may be sought against a Holder of the Restricted Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred covered by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of such Holder shall have the foregoing, or rights and duties given the Company in Section 2.8(a) (ii) any omission or alleged omission to state therein a material fact except that the Holder may but shall not be required to be stated therein or necessary to make assume the statements therein (in the case of a Prospectus or a preliminary Prospectusdefense thereof), in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation its directors or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within controlling person shall have the meaning of rights and duties given to each Holder by Section 15 of the Securities Act or Section 20 of the Exchange Act2.8(a), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 2.8 is unavailable to an indemnified party hereunder under Section 2.8(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the indemnifying partycase of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, claims damages, liabilities and liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities or (ii) if such 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 Company and indemnified party such Holder in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such indemnifying party and indemnified party Holder on the other shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company or by such indemnifying party or indemnified party, Holder and the parties' parties relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 11(c) hereof2.8(a), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation action or proceedingclaim. The parties hereto Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 11(d2.8(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d)the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d), 2.8(c) no underwriter Holder (and none of its related indemnified Persons) shall be required to contribute contribute, in the aggregate, any amount in excess of the amount by which the total price at which dollar amount of proceeds received by such Holder upon the Registrable sale of the Restricted Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11The indemnity, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for and contribution provisions contained in this Section 11(d).
(e) The provisions of this Section 11 shall be 2.8 are in addition to any liability which any party the indemnifying person may otherwise have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an the indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerpersons referred to above.
Appears in 1 contract
Sources: Registration Rights Agreement (Senesco Technologies Inc)
Indemnification; Contribution. (a) The If any Registrable Securities are included in a registration statement under this Agreement:
11.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless the Foundation, its officers ▇▇. ▇▇▇▇ against any and directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and expenses) disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any Registration Statement, any Prospectus preliminary prospectus or preliminary Prospectusfinal prospectus contained therein, or any amendment amendments or supplement to any of the foregoing, or supplements thereto; or
(ii) any The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (not misleading; provided, however, that the indemnification required by this Section 11.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the case of a Prospectus or a preliminary Prospectus, in light consent of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company which consent shall not be unreasonably withheld), nor shall the Company be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 case for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense to the extent that it arises out of an untrue statement or alleged untrue statement or omission or alleged omission is based upon a Violation that occurs in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person reliance upon and such statement or omission was corrected in such final Prospectus and the Company had previously and timely conformity with information furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish writing to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests indemnified party expressly for use in connection with such registration.
11.2. To the Registration Statement relating to such registration or the related Prospectus and agrees to extent permitted by applicable law, ▇▇. ▇▇▇▇ shall indemnify and hold harmless the Company, any underwritereach of the directors of the Company, each such party's of the officers and directors and of the Company who shall have signed the registration statement, each Person Person, if any, who controls each such party (the Company within the meaning of Section 15 of the Securities Act or Section 20 Act, any other Selling Holder, any controlling Person of the Exchange Act)any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and expenses) disbursements and reasonable expenses of investigation, incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusViolation, in light of the circumstances then existing) not misleading, but only each case to the extent that such Violation arises out of or is based upon information furnished by ▇▇. ▇▇▇▇ in writing expressly for use in connection with such registration; provided, however, that (x) any indemnification required by this Section 11.2 shall not apply to amounts paid in settlement of any such untrue statement loss, claim, damage, liability or omission expense if such settlement is made in reliance on and in conformity with information with respect to effected without the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion thereinconsent of ▇▇. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation ▇▇▇▇ (which consent shall not be liable to unreasonably withheld) and (y) in no event shall the Company, amount of any underwriter, each such parties' officers or directors, any other Person who controls any such party (within indemnity under this Section 11.2 exceed the meaning of Section 15 of gross proceeds from the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementapplicable offering received by ▇▇. ▇▇▇▇.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party 11.3. Promptly after the receipt by such an indemnified party under this Section 11 of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 11, such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel reasonably satisfactory the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for to the extent of such prejudice but shall not relieve the indemnifying party of any legal liability that it may have to any indemnified party otherwise than pursuant to this Section 11. Any fees and expenses of other counsel or any other expenses, in each case subsequently incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, in connection with the defense as incurred, within thirty (30) days of written notice thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such (regardless of whether it is ultimately determined that an indemnified party were is not entitled to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then indemnification hereunder). Any such indemnified party shall have the right to employ separate counselcounsel in any such action, claim or proceeding and to participate in which case the defense thereof, but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the fees and expenses of all other such additional counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partycounsels).
(d) 11.4. If the indemnification required by this Section 11 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the in this Section 11:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which that resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof11.1 and Section 11.2, any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) 11.4 were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d11.4(i). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
11.5. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in this Section 11(a) or (b) hereof, as the case may be, 11 without regard to the relative fault of such indemnifying parties party or indemnified party or any other equitable consideration provided for referred to in this Section 11(d)11.4.
(e) 11.6. The provisions obligations of the Company and ▇▇. ▇▇▇▇ under this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any the termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Registration Rights Agreement (CDW Computer Centers Inc)
Indemnification; Contribution. (a) The Company shall shall, and it hereby agrees to, (i) indemnify and hold harmless the Foundationeach Demand Shareholder (but not, its officers and directorspursuant to this Section 6.6, any Shareholder Designee in his or her capacity as a Director), and each underwriter in any agent offering or investment adviser thereof sale of Registrable Shares, and its and their respective Representatives and Controlling Persons, if any, from and against any and all losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement reached in accordance with the requirements for consent as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus or preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement to any of the foregoingthereto, or (ii) any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a any preliminary or final Prospectus or a preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement), in light of the circumstances then existing) in which they were made), not misleading, except ; and (ii) reimburse periodically upon demand such indemnified party for any legal or other out-of-pocket expenses reasonably incurred by such indemnified party in each case insofar as the same arise out of connection with investigating or are based upon, defending any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten OfferingClaims; provided, the Company shall indemnify the underwriters thereofhowever, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), that the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for indemnified party in any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense case to the extent that arises any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the preliminary Prospectus if the Foundationsuch Registration Statement, or other Person on behalf of preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Foundation, failed to send Company by a Demand Shareholder or deliver a copy any Representative of a final Prospectus Demand Shareholder expressly for use therein, or if a Demand Shareholder sold securities to the Person asserting the claim alleging such Claims without sending or giving, at or prior to the written confirmation of the sale such sale, a copy of the Registrable Securities to such Person and such statement applicable Prospectus (excluding any documents incorporated by reference therein) or omission was corrected in such final Prospectus and of the applicable Prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Company had previously and timely furnished sufficient copies thereof to the Foundation Original Shareholder, on behalf of the Demand Shareholders, and such Prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in accordance with this Agreementsuch Registration Statement.
(b) In connection with any registration of Registrable Securities pursuant to this AgreementEach Demand Shareholder shall, the Foundation shall furnish to the Company and any underwriter in writing such informationhereby agrees to, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to (i) indemnify and hold harmless the CompanyCompany and each underwriter in any offering or sale of Registrable Shares, and its and their respective Representatives and Controlling Persons, if any, from and against any underwriter, Claims to which each such party's officers and directors and each Person who controls each indemnified party may become subject, insofar as such party Claims (within including any amounts paid in settlement reached in accordance with the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Actrequirements for consent as provided herein), and any agent or investment adviser thereof against all lossesactions or proceedings in respect thereof, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus or preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement to any of the foregoingthereto, or (ii) any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a any preliminary or final Prospectus or a preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement), in light of the circumstances then existing) in which they were made), not misleading; and (ii) reimburse periodically upon demand such indemnified party for any legal or other out-of-pocket expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claims, but in each case only to the extent that any such untrue statement or alleged untrue statement or omission is or alleged omission was made in reliance on upon and in conformity with information with respect to the Foundation furnished in writing to the Company by a Demand Shareholder or any underwriter by the Foundation Representative of a Demand Shareholder, expressly for use therein, or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable if a Demand Shareholder sold securities to the CompanyPerson alleging such Claims without sending or giving, any underwriterat or prior to the written confirmation of such sale, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 a copy of the Securities Act applicable Prospectus (excluding any documents incorporated by reference therein) or Section 20 of the Exchange Actapplicable Prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), or any agent or investment advisor thereof, if the Foundation Company had provided information curing any previously furnished copies thereof to the Original Shareholder, on behalf of the Demand Shareholders, and such Prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement; provided, however, that the liability of the Demand Shareholders hereunder shall be limited to an amount equal to the dollar amount of the net proceeds received by the Demand Shareholders from Shareholder Shares sold by the Demand Shareholders pursuant to such Registration Statement or Prospectus.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to Each Demand Shareholder and the indemnifying party after the receipt by such indemnified party of Company agree that if, for any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofreason, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this indemnification provisions contemplated by Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory6.6(a) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (iiSection 6.6(b) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with the actions which respect to statements or omissions that that resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsClaims. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 6.6(c) is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto Parties agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d6.6(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d6.6(c), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 6.7) any damages which legal or other fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11Notwithstanding the foregoing, the indemnifying parties Demand Shareholders shall indemnify each indemnified party not be liable to contribute any amount in excess of the fullest extent provided in Section 11(a) dollar amount of the net proceeds received by the Demand Shareholders from Shareholder Shares sold by the Demand Shareholders pursuant to such Registration Statement or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)Prospectus.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(a) The To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Holder, each Person, if any, who controls such Holder within the Foundation, its officers and directorsmeaning of the Securities Act, and each officer, director, partner and employee of such Holder and such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' attorney’s fees and expenses) disbursements and reasonable expenses of investigation (collectively, “Losses”), incurred by such party Person pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon any of the following statements or omissions (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, including any Registration Statementpreliminary prospectus, any Prospectus issuer free writing prospectus, the general disclosure package or preliminary Prospectusthe final prospectus contained therein, or any amendment amendments or supplement to any of the foregoing, or supplements thereto; or
(ii) any the omission or alleged omission to state therein a material fact required to be stated therein in either such preliminary prospectus, issuer free writing prospectus, general disclosure package or final prospectus, or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectustherein, in light of the circumstances then existing) under which they were made, not misleading; provided, except however, that the indemnification required by this Section 7(a) shall not apply to amounts paid in each settlement of any such Loss if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case insofar as for any such Loss to the same arise extent that it arises out of or are is based upon, any such untrue statement or omission made upon a Violation which occurs in reliance on upon and in conformity with information with respect to the Foundation furnished in writing to the Company by the Foundation or its counsel on behalf of a Holder or any underwriter expressly for use therein. In in connection with an Underwritten Offeringsuch registration; and provided, further, that this indemnity shall not be available to any Person who offers or Transfers any Registrable Securities (whether pursuant to a prospectus or not) during any period which the Company shall indemnify has notified the underwriters thereofHolder that such offers and Transfers must cease under the Agreement, their officersincluding Sections 2.3(a), directors 4(b), 5(b) and agents and each Person who controls such underwriters (within the meaning of 5(c). Subject to Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above 7(c), in connection with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a)indemnification obligations, the Company shall not be liable to for reasonable fees and expenses of more than one separate firm for all the FoundationHolders.
(b) To the extent permitted by applicable law, any Person the Holders (jointly and severally) shall indemnify and hold harmless the Company, each of the directors of the Company, each of the officers of the Company who participates as an underwriter in shall have signed the offering or sale of Registrable Securities or any other registration statement, each Person, if any, who controls any such underwriter (the Company within the meaning of Section 15 of the Securities Act or Section 20 Act, and each officer, director, partner, and employee of the Exchange Act)such controlling Person, under this Section 11 for against any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to and all Losses incurred by such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusViolation, in light of the circumstances then existing) not misleading, but only each case to the extent that such Violation arises out of or is based upon information furnished in writing by or on behalf of a Holder expressly for use in connection with such registration; provided, however, that (x) any indemnification required by this Section 7(b) shall not apply to amounts paid in settlement of any such untrue statement or omission Loss if such settlement is made in reliance on and in conformity with information with respect to effected without the Foundation furnished to consent of the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation Holders (which consent shall not be liable to unreasonably withheld) and (y) in no event shall the Company, amount of any underwriter, each such parties' officers or directors, any other Person who controls any such party (within indemnity obligation under this Section 7(b) exceed the meaning of Section 15 of gross proceeds from the Securities Act or Section 20 of applicable offering received by the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementHolders.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 7 of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 7, such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel reasonably satisfactory the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses 7 to the extent of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) prejudice but shall not relieve the indemnifying party shall not of any liability that it may have employed counsel reasonably satisfactory to such any indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected otherwise than pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then this Section 7. Any such indemnified party shall have the right to employ separate counselcounsel in any such action, claim or proceeding and to participate in which case the defense thereof, but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party and could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and any other counsel retained by the of such indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent with respect to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an such action, suit, claim or proceeding exclusively seeking monetary reliefproceeding, in which event the indemnifying party shall not be unreasonably withheld) obligated to pay the reasonable fees and expenses of each indemnifying partysuch additional counsel or counsels).
(d) If the indemnification required by this Section 7 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Losses referred to therein, then in this Section 7:
(i) the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which that resulted in such losses, claims, damages, liabilities and expensesLosses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(cSections 7(a), 7(b) hereofand 7(c), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The ;
(ii) the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d7(d) were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d7(d)(i). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions obligations of the Company and the Holders under this Section 11 shall be in addition to any liability which any party may have to any other party and 7 shall survive the completion of any termination offering of Registrable Securities pursuant to the registration statement under this Agreement. The indemnification provided by this Section 11 shall remain in full force , and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Oscient Pharmaceuticals Corp)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless the Foundationeach Holder, its their respective officers and directors, and each Person, if any, who controls such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and any agent agents, representatives or investment adviser advisers thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensesexpenses and reasonable costs of investigation) (collectively, "Damages") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or (iii) any violation or alleged violation by the Company of any United States federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration except in each case insofar as the same arise out of or are based upon, upon any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation Holders furnished to the Company by the Foundation Holders or its their counsel expressly for use therein. Notwithstanding anything in this Agreement to the contrary, the Company shall not be required to indemnify any Person whose conduct has been determined by a final non-appealable judgment of a court of competent jurisdiction to constitute bad faith, gross negligence or willful misconduct. Subject to Section 11(b) hereof, the Company shall not be responsible hereunder for the fees and expenses of more than one counsel (together with local counsel, if any) for the indemnified parties. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this AgreementHolders.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually materially prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded or been advised by counsel that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, which could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counselcounsel of its choosing, in which case at the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest expense of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified partiesparty. No indemnified indemnifying party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying the applicable indemnified party.
(dc) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Damages referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Damages in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions or omissions which resulted in such losses, claims, damages, liabilities and expensesDamages, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionaction or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Damages referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c11(b) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d11(c) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d11(c). Any underwriter's obligations in this Section 11(c) to contribute shall be several in proportion to the number of Registrable Securities underwritten by them and not joint. Notwithstanding the provisions of this Section 11(d11(c), 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 were offered to the public exceeds the amount of any damages Damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, hereof without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d11(c).
(ed) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall survive the Transfer of such Registrable Securities by the Holders and shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, and shall indemnify cause each of its Subsidiaries to, jointly and severally, without limitation as to time, indemnify, defend and hold harmless harmless, to the Foundationfull extent permitted by law, its officers and each holder of Registrable Securities, the partners, members, officers, directors, agents, representatives and any agent or investment adviser thereof against all lossesemployees of each of them, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls each such underwriters holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) ), the partners, members, officers, directors, agents, representatives and employees of each such controlling person and any financial or investment adviser (each, a "Covered Person"), to the same fullest extent lawful, from and against any and all losses, claims, damages, liabilities, actions or proceedings (whether commenced or threatened), costs (including costs of preparation and attorneys' fees) and expenses (including expenses of investigation) (collectively, "Losses"), as provided above with respect incurred, arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or form of prospectus or in any amendment or supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the indemnification extent that the same arise out of or are based upon information furnished in writing to the Foundation. Notwithstanding Company by such Covered Person or the foregoing provisions related holder of this Section 11(a)Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided that the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (underwriters within the meaning of Section 15 of the Securities Act or Section 20 of to the Exchange Act), under this Section 11 for extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the any preliminary Prospectus prospectus if the Foundation, or other (i) such Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim prior from which such Losses arise, (ii) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (iii) the Company has complied with its obligations under Section 3.4(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the public offering pursuant to any Registration Statement provided for under this ARTICLE III is made through underwriters, no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementpreceding sentence.
(b) In connection with any registration Registration Statement in which a holder of Registrable Securities pursuant to this Agreementis participating, the Foundation such holder, or an authorized officer of such holder, shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, information as the Company or any underwriter reasonably requests for use in the connection with any Registration Statement relating or prospectus and such holder of Registrable Securities agrees, severally and not jointly, to such registration or the related Prospectus and agrees to indemnify indemnify, defend and hold harmless to the full extent permitted by law, the Company, any underwriterits directors, each such party's officers officers, agents, representatives and directors and employees, each Person who controls each such party the Company (within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act), and any agent the partners, members, directors, officers, agents, representatives or investment adviser thereof employees of such controlling persons, from and against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation Losses arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusprospectus, or any amendment or supplement to any form of the foregoingprospectus, or (ii) arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, to the extent, but only to the extent extent, that any such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to was relied upon by the Company in preparation of such Registration Statement, prospectus or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions form of this Section 13(b), the Foundation prospectus; provided that such holder of Registrable Securities shall not be liable in any such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any underwriter, each such parties' officers or directors, any other Person who controls any such party (within holder of Registrable Securities hereunder be greater in amount than the meaning of Section 15 dollar amount of the Securities Act or Section 20 proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient Registrable Securities giving rise to prevent the inclusion of such untrue statement or omission in the Registration Statementindemnification obligation.
(c) Any If any Person shall be entitled to indemnification indemnity hereunder agrees to (an "Indemnified Party"), such Indemnified Party shall give prompt written notice to the indemnifying party after or parties from which such indemnity is sought (the receipt by such indemnified party of any written notice "Indemnifying Parties") of the commencement of any action, suit, proceeding or investigation or written threat thereof made in writing for (a "Proceeding") with respect to which such indemnified party may claim Indemnified Party seeks indemnification or contribution pursuant to this Section 11 (hereto; provided that the failure to give such notification so notify the Indemnifying Parties shall not affect relieve the obligations of the indemnifying party pursuant to this Section 11 Indemnifying Parties from any obligation or liability except to the extent that the indemnifying party Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall have been actually prejudiced as a result the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such failure). In case Proceeding, to assume, at the Indemnifying Parties' expense, the defense of any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofProceeding, with counsel reasonably satisfactory to such indemnified party Indemnified Party; provided that an Indemnified Party or Parties (who if more than one such Indemnified Party is named in any Proceeding) shall nothave the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, except with but the consent fees and expenses of such counsel shall be at the indemnified partyexpense of such Indemnified Party or Parties unless (i) the Indemnifying Parties agree to pay such fees and expenses, be counsel to (ii) the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so Indemnifying Parties fail promptly to assume the defense thereof, the indemnifying party shall not be liable of such Proceeding or fail to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed employ counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) Indemnified Party or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defenseParties, or (iiiii) the actual or potential defendants in, or targets of, named parties to any such action Proceeding (including any impleaded parties) include both such Indemnified Party or Parties and the indemnifying party Indemnifying Parties or an Affiliate of the Indemnifying Parties or such Indemnified Parties, and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal one or more defenses available to it which such Indemnified Party or Parties that are different from or additional to those available to the indemnifying party whichIndemnifying Parties, in which case, if such Indemnified Party or Parties notifies the indemnifying party and such indemnified party were Indemnifying Parties in writing that it elects to be represented by employ separate counsel at the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution expense of the defenses available to such indemnified partyIndemnifying Parties, then such indemnified party the Indemnifying Parties shall not have the right to employ separate counselassume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in which case connection with any one such Proceeding or separate but substantially similar or related Proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one together with appropriate local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne at any time for such Indemnified Party or Parties. Whether or not such defense is assumed by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties Indemnifying Parties, such Indemnifying Parties or Indemnified Party or Parties shall not be paid by the indemnified partiessubject to any liability for any settlement made without its or their consent (but such consent shall not be unreasonably withheld). No indemnified party The Indemnifying Parties shall not consent to entry of any judgment or enter into any settlement which (i) provides for other than monetary damages without the consent of the Indemnified Party or Parties (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, consent shall not be unreasonably withheldwithheld or delayed) or (ii) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or Parties of each indemnifying partya release, in form and substance satisfactory to the Indemnified Party or Parties, from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to indemnification hereunder.
(d) If the indemnification from the indemnifying party provided for in this Section 11 3.6 is unavailable to an indemnified party hereunder Indemnified Party or is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities or expenses referred to thereinwhich this Section 3.6 would otherwise apply by its terms, then the indemnifying partyeach applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have a joint and several obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party, on the one hand, and indemnified party such Indemnified Party, on the other hand, in connection with the actions which actions, statements or omissions that resulted in such losses, claims, damages, liabilities and expenses, Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party Indemnifying Party, on the one hand, and indemnified party Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, include any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 3.6(a) or proceeding3.6(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d3.6(d) were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 11(d3.6(d). Notwithstanding the provisions of this Section 11(d3.6(d), no underwriter shall be required to contribute any amount in excess an Indemnifying Party that is a holder of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public net proceeds received by such Indemnifying Party exceeds the amount of any damages which the Foundation that such Indemnifying Party has otherwise been required to pay by reason reasons of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall and each of the Guarantors, jointly and severally, agree to indemnify and hold harmless each Holder of the FoundationSecurities, its officers any Participating Broker-Dealer and each of their respective affiliates, directors, officers, employees and agents and each person who controls (within the meaning of either the Securities Act or the Exchange Act) any agent Holder of the Securities or investment adviser thereof any Participating Broker-Dealer, from and against any and all losses, claims, damagesdamages or 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, insofar as such losses, claims, damages or liabilities and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any Registration Statement, any Prospectus or preliminary Prospectusamendment thereof, or any amendment arise out of or supplement to any of are based upon the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (not misleading, or arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the case prospectus included in a Registration Statement or in any preliminary prospectus or any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act), or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a Prospectus or a preliminary Prospectusmaterial fact necessary to make the statements therein, in light of the circumstances then existing) under which they were made, not misleading, except and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such party in each connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company and the Guarantors will not be liable in any such case insofar as to the same arise extent that any such loss, claim, damage, liability or action arises out of or are is based upon, upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly on behalf of such Holders or any such Participating Broker-Dealer specifically for use inclusion therein. In connection with an Underwritten Offering, The Company and the Company Guarantors shall also indemnify the underwriters thereofin connection with any Shelf Registration, their officers, officers and directors and agents and each Person person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) Act to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 Holders of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for if requested in writing by such Holders. This indemnity agreement will be in addition to any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and which the Company had previously and timely furnished sufficient copies thereof to or the Foundation in accordance with this AgreementGuarantors may otherwise have.
(b) In connection with any registration Each Holder of Registrable the Securities pursuant to this Agreementand each Participating Broker-Dealer agrees, the Foundation shall furnish to the Company severally and any underwriter in writing such informationnot jointly, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwritereach of its directors, each such party's of its officers and directors who signs a Registration Statement, and each Person person who controls each such party (the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act), to the same extent as the foregoing indemnity from the Company and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant the Guarantors to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any the Holders of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleadingSecurities and Participating Broker-Dealers, but only with reference to written information relating to the extent that any such untrue statement or omission is made in reliance on Holders of the Securities and in conformity with information with respect to the Foundation Participating Broker-Dealers furnished to the Company by or on behalf of any underwriter by the Foundation such Holder or its counsel Participating Broker-Dealer specifically for inclusion therein. Notwithstanding in the documents referred to in the foregoing provisions of this Section 13(b), indemnity. Any underwriter that is covered by the Foundation indemnity in the preceding paragraph (a) shall not be liable to also indemnify the Company, any underwritereach of its directors, each such parties' of its officers or directorswho signs a Registration Statement, any other Person and each person who controls any such party (the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act, to the same extent as provided above in this paragraph (b). This indemnity agreement will be in addition to any liability which any such underwriter, or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent Holders of the inclusion of such untrue statement or omission in the Registration StatementSecurities and Participating Broker-Dealers may otherwise have.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 5 of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may will, if a claim indemnification or contribution pursuant in respect thereof is to this Section 11 (provided that failure to give such notification shall not affect the obligations of be made against the indemnifying party pursuant to under this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve the indemnifying party 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 participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from ’s choice at the indemnifying party party’s expense to such represent the indemnified party of its election so to assume the defense thereof, in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be liable to such responsible for the fees and expenses of any separate counsel retained by the indemnified party under this Section 11 for any legal expenses of other or parties except as set forth below); provided, however, that such counsel or any other expenses, in each case subsequently incurred by such shall be reasonably satisfactory to the indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoingindemnifying party’s election to appoint 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 indemnifying party shall not have employed use of counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination chosen by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of represent the indemnified party its ability to finance would present such defensecounsel with a conflict of interest, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and such indemnified party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party whichparty, if (iii) the indemnifying party and such shall not have employed counsel reasonably satisfactory to the indemnified party were to be represented by represent the same counsel, could result in indemnified party within a conflict of interest for such counsel or materially prejudice the prosecution reasonable time after notice of the defenses available to institution of such indemnified party, then such action or (iv) the indemnifying party shall authorize the indemnified party shall have the right to employ separate counselcounsel at the expense of the indemnifying party. An indemnifying party will not, in which case without the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall , settle or compromise or consent to the entry of any judgment with respect to any pending or enter into any settlement without 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 (which consentx) includes an unconditional release of each indemnified party from all liability arising out of such claim, in the case of an action, suitsuit or proceeding, claim and (y) does not include a statement as to or proceeding exclusively seeking monetary reliefan admission of fault, shall not be unreasonably withheld) culpability or a failure to act by or on behalf of each indemnifying any indemnified party.
(d) If In the indemnification from event that the indemnifying party indemnity provided for in paragraph (a) or (b) of this Section 11 5 is unavailable to or insufficient to hold harmless an indemnified party hereunder in respect of for any reason, each indemnifying party agrees to contribute to the aggregate losses, claims, damages, damages and liabilities (including legal or other expenses referred reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to therein, then which the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses may be subject 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 on the other hand from the exchange of Securities pursuant to the Registered Exchange Offer or the registration of the Initial Securities pursuant to the Shelf Registration, as applicable. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company, the Guarantors, the Holders of Securities and the Participating Broker-Dealers shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the indemnifying party Company and indemnified party the Guarantors, on the one hand, and of the Holders of Securities and the Participating Broker-Dealers, on the other hand, in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and expenses, Losses as well as any other relevant equitable considerations. The relative Relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, such indemnifying party or indemnified party, provided by the Company and the parties' Guarantors on the one hand or the relevant Holder, Participating Broker-Dealer or other indemnified party on the other, the intent of the parties and their relative intent, knowledge, access to information and opportunity to correct or prevent such actionuntrue statement or omission. The amount paid or payable by a party as a result Company, the Guarantors, the Holders of the losses, claims, damages, liabilities Securities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree Participating Broker-Dealer agrees that it would not be just and equitable if contribution pursuant to this Section 11(d) 5 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d)above. Notwithstanding the provisions of this Section 11(dparagraph (d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under For purposes of this Section 115, each person who controls a Holder of Securities or Participating Broker-Dealer within the indemnifying parties meaning of either the Securities Act or the Exchange Act and each affiliate, director, officer, employee and agent of a Holder of Securities or Participating Broker-Dealer shall indemnify have the same rights to contribution as such Holder of Securities or Participating Broker-Dealer, and each indemnified party person who controls the Company or the Guarantors within the meaning of either the Securities Act or the Exchange Act, each officer of the Company or the Guarantors who shall have signed a Registration Statement and each director of the Company or the Guarantors shall have the same rights to contribution as the Company and the Guarantors, subject in each case to the fullest extent provided applicable terms and conditions of this paragraph (d). Notwithstanding any other provision of this Section 5(d), no Holder of the Securities shall be required to contribute any amount in Section 11(a) or (b) hereof, as excess of the case may be, without regard amount by which the net proceeds received by such Holder from the sale of the Securities pursuant to a Registration Statement exceeds the relative fault amount of damages which such Holder has otherwise been required to pay by reason of such indemnifying parties untrue or indemnified party alleged untrue statement or any other equitable consideration provided for in this Section 11(d)omission or alleged omission.
(e) The provisions of agreements contained in this Section 11 shall be in addition to any liability which any party may have to any other party and 5 shall survive any termination the sale of this Agreement. The indemnification provided by this Section 11 the Securities pursuant to a Registration Statement and shall remain in full force and effect irrespective effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of an any indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless (i) each Holder covered by any Registration Statement, (ii) each other Person who participates as an underwriter in the Foundationoffering or sale of such securities, its officers (iii) each person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the persons referred to in this clause (iii) being hereinafter referred to as a "controlling person") and (iv) the respective officers, directors, partners, employees, representatives and agents of any agent such Holder or investment adviser thereof underwriter or any controlling person (any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and expenses liabilities, judgments or expenses, joint or several (including reasonable attorneys' fees and expensesor actions or proceedings, whether commenced or threatened, in respect thereof) incurred by (collectively, "Claims"), to which such party pursuant to any actual indemnified Person may become subject under either Section 15 of the Securities Act or threatened actionSection 20 of the Exchange Act or otherwise, suit, proceeding or investigation arising insofar as such Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Statement or Prospectus or preliminary Prospectus, (or any amendment or supplement to any of the foregoingthereto), or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except in each case insofar as the same arise out such losses, claims, damages, liabilities, judgments or expenses of or any such indemnified Person; (x) are based upon, caused by any such untrue statement or omission made or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in reliance writing to the Company by or on and in conformity with information behalf of any of such indemnified Person expressly for use therein; (y) with respect to the Foundation preliminary Prospectus, result from the fact that such Holder sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, as amended or supplemented, if the Company shall have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Black-Out Notice or a notice from the Company of the existence of any fact of the kind described in Section 2.4(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defence thereof. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the Company shall have failed to assume the defence and employ counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, (in which case the Company shall not have the right to assume the defense of such action on behalf of the indemnified Person), it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the underwriters thereofwritten consent of the Company. The Company shall not, their officerswithout the prior written consent of each indemnified Person, directors settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and agents not jointly, to indemnify and each Person who controls such underwriters hold harmless the Company and its directors, officers and any person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each person, to the same extent as provided above the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) with respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the indemnification extent of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Persongross proceeds, if any, who controls received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as be brought against the Company or its directors or officers or any underwriter reasonably requests for use such controlling person in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning respect of Section 15 which indemnity may be sought against a Holder of the Restricted Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred covered by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of such Holder shall have the foregoing, or rights and duties given the Company in Section 2.8(a) (ii) any omission or alleged omission to state therein a material fact except that the Holder may but shall not be required to be stated therein or necessary to make assume the statements therein (in the case of a Prospectus or a preliminary Prospectusdefense thereof), in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation its directors or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within controlling person shall have the meaning of rights and duties given to each Holder by Section 15 of the Securities Act or Section 20 of the Exchange Act2.8(a), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 2.8 is unavailable to an indemnified party hereunder under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities liabilities, judgments or expenses referred to therein, then each applicable indemnifying party (in the indemnifying partycase of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, claims damages, liabilities and liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Restricted Securities or (ii) if such 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 Company and indemnified party such Holder in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such indemnifying party and indemnified party Holder on the other shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company or by such indemnifying party or indemnified party, Holder and the parties' parties relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 11(c) hereof2.8(a), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation action or proceedingclaim. The parties hereto Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 11(d2.8(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d)the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d), 2.8(c) no underwriter Holder (and none of its related indemnified Persons) shall be required to contribute contribute, in the aggregate, any amount in excess of the amount by which the total price at which dollar amount of proceeds received by such Holder upon the Registrable sale of the Restricted Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11The indemnity, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for and contribution provisions contained in this Section 11(d).
(e) The provisions of this Section 11 shall be 2.8 are in addition to any liability which any party the indemnifying person may otherwise have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an the indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerpersons referred to above.
Appears in 1 contract
Sources: Registration Rights Agreement (Environmental Remediation Holding Corp)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless the Foundation, its officers and directors, and In connection with any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out registration of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, Registrable Shares or any amendment distribution, offer or supplement to sale of any of the foregoingRegistrable Shares, or (ii) including any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusUnderwritten Offering, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company any Registration Statement or by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offeringmeans of any Offering Documents, the Company shall indemnify the underwriters thereofagrees to indemnify, their officersdefend and hold harmless, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same fullest extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a)permitted by Applicable Law, the Company shall not be liable to the Foundation, each Selling Shareholder Indemnified Person from and against any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementall Selling Shareholder Claims.
(b) In connection with any registration of Registrable Securities pursuant to this AgreementShares or any distribution, the Foundation shall furnish to the Company and offer or sale of any underwriter in writing such informationRegistrable Shares, including the nameany Underwritten Offering, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on any Registration Statement or by means of any Offering Documents, each of the Selling Shareholders, severally but not jointly, agrees to indemnify, defend and hold harmless each and every Company Indemnified Person from and against any and all Company Claims against such Selling Shareholder; provided, however, that in conformity with information no event shall the liability of any Selling Shareholder for such indemnification exceed the dollar amount by which the proceeds (net of underwriting discounts and commissions and other selling expenses) received by such Selling Shareholder from the sale of the Registrable Shares giving rise to such indemnification exceed the amount of any damages which such Selling Shareholder has otherwise actually paid in satisfaction of any judgment with respect to or the Foundation furnished settlement of any claim against such Selling Shareholder by one or more third parties not affiliated with such Selling Shareholder in connection with the subject matter giving rise to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each Claim against such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementSelling Shareholder.
(c) Any Person entitled In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Indemnified Party, such Indemnified Party will promptly notify the Indemnifying Party against whom such indemnity may be sought in writing, and the Indemnifying Party, upon request of the Indemnified Party, will retain counsel (which may also be counsel to the Indemnifying Party) as may be reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in connection with any claim, action or legal proceeding that could result in a claim for indemnification hereunder agrees by the Indemnified Party and will pay the fees and disbursements of such counsel related to such claim, action or proceeding; provided, however, that the failure or delay to give prompt written such notice to shall not relieve the indemnifying party after the receipt by such indemnified party Indemnifying Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution its obligations pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 Agreement except to the extent such Indemnifying Party has been prejudiced in any material respect by such failure or delay. In any such claim, action or proceeding, any Indemnified Party will have the indemnifying party shall have been actually prejudiced as a result right to retain its own counsel, but the fees and expenses of such failure). In case any counsel will be at the expense of such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if Indemnified Party unless: (i) the indemnifying party shall not Indemnifying Party and the Indemnified Party have employed counsel reasonably satisfactory mutually agreed to such indemnified party to take charge of the defense retention of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, counsel; or (ii) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential defendants inconflicting interests between them. It is understood that the Indemnifying Party will not, in connection with any claim, action or targets ofproceeding or related claims, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from actions or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by proceedings in the same counseljurisdiction, could result in a conflict of interest be liable for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the reasonable fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one in addition to any required local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party at any time for all such Indemnified Parties and the that all such reasonable fees and expenses will be reimbursed as they are incurred. In the case of all other counsel retained the retention of any such separate firm for the Indemnified Parties, such firm of attorneys will be designated in writing by the indemnified parties shall Indemnified Parties. The Indemnifying Party will not be paid by the indemnified partiesliable for any settlement of any claim, action or proceeding effected without its prior, express written consent, which consent may not be unreasonably withheld or delayed. No indemnified party shall Indemnifying Party will, without the prior written consent to entry of the Indemnified Party: (i) confess any judgment or enter into permit any default judgment to be taken; or (ii) effect any settlement without the consent (which consentof any pending or threatened claim, in the case of an action, suit, claim action or proceeding exclusively seeking monetary reliefin respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, shall unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such claim, action or proceeding and unless such settlement does not be unreasonably withheld) include a statement to, or an admission of, fault, culpability or a failure to act, by or on behalf of each indemnifying partythe Indemnified Party.
(d) If the an indemnification from the indemnifying party provided for in this Section 11 from the Indemnifying Party is unavailable to an indemnified party Indemnified Party hereunder in respect of any Claims (other than any losses, claims, damages, liabilities or liabilities, judgments, costs and expenses referred for which an Indemnified Party is expressly not entitled to thereinindemnification pursuant to this Section 11), then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall will contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company, on the one hand, and indemnified the applicable Selling Shareholders, on the other, in connection with the statements or omissions or, in the case of the Selling Shareholders, inaccurate certifications that resulted in such Claims; provided, however, that in no event shall a Selling Shareholder be required to contribute an aggregate amount in excess of the lesser of: (A) the amount that such Selling Shareholder would have been obligated to pay under Section 11(b) if such indemnity was available to the Indemnified Party; and (B) the dollar amount by which proceeds (net of underwriting discounts and commissions and other selling expenses) received by such Selling Shareholder exceeds the amount of any damages which such Selling Shareholder has otherwise actually paid in satisfaction of any judgment with respect to or the settlement of any claim by any unaffiliated third party in connection with the actions subject matter giving rise to the Claims for which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationscontribution is sought. The relative fault of such indemnifying party the Company and indemnified party shall any Selling Shareholder will be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, the Company or such indemnifying party or indemnified partySelling Shareholder, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Claims referred to above shall will be deemed to include, subject to the limitations set forth in Section 11(c) hereof), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. proceeding initiated in connection with such Claims.
(e) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. .
(f) If indemnification is available under this Section 11, the indemnifying parties shall Indemnifying Party will indemnify each indemnified party Indemnified Party to the fullest full extent provided in Section Sections 11(a) or (band 11(b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties said Indemnifying Party or indemnified party Indemnified Party or any other equitable consideration provided for in this Section 11(d) or 11(e).
(eg) Notwithstanding anything to the contrary in this Agreement, each of the Indemnified Parties has relied on this Section 11, is an express third party beneficiary of this Section 11 and is entitled to enforce the obligations of the applicable Indemnifying Parties under this Section 11 directly against such Indemnifying Parties to the full extent thereof.
(h) In no event will any Indemnifying Party be liable for, or any Indemnified Party have any right to, any indemnification hereunder with respect to any consequential, loss of profits, special or other similar damages suffered by an Indemnified Party.
(i) The provisions of this Section 11 shall be in addition to any liability remedies which any party may have to any other party party, whether at law or in equity, and shall survive the Expiration Date or any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerAgreement occurring prior to the Expiration Date.
Appears in 1 contract
Sources: Registration Rights Agreement (Wal Mart Stores Inc)
Indemnification; Contribution. (ai) The In connection with any Shelf Registration Statement, the Company shall agrees to indemnify and hold harmless each Holder of Notes or Common Stock issued upon conversion thereof covered thereby, the Foundation, its officers and directors, officers, employees and agents of each such Holder and each person who controls any agent such Holder within the meaning of either the Act or investment adviser thereof the Exchange Act against any and all losses, claims, damagesdamages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising (i) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement as originally filed or in any Registration Statementamendment thereof, or in any preliminary Prospectus or preliminary Prospectus, or in any amendment thereof or supplement to any of the foregoingthereto, or (ii) any arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act investigating or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for defending any such loss, claim, damage, liability (or action action; provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage or proceeding in respect thereof) or expense that liability arises out of an or is based upon (i) any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the preliminary Prospectus if the Foundation, Company by or other Person on behalf of the Foundationany such Holder specifically for inclusion therein, failed to send or deliver a copy (ii) use of a final Shelf Registration Statement or the related Prospectus during a period when a stop order has been issued in respect of such Shelf Registration or any proceedings for that purpose have been initiated or use of a Prospectus when use of such Prospectus has been deferred pursuant to Section 2(c); provided, further, in each case, that the Person asserting the claim Company has delivered prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus notice, and the Company had previously and timely furnished sufficient copies thereof to the Foundation Holders have received such prior notice, in accordance with this AgreementSection 7(c) hereof of such stop order, initiation of proceedings or deferral or (iii) if the Holder fails to deliver a Prospectus or the then current Prospectus. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(ii) The Company also agrees to indemnify or contribute to Losses, as provided in Section 5(d), of any Underwriters of the Notes or the Common Stock issued upon conversion thereof registered under a Shelf Registration Statement, their officers and directors and each person who controls such Underwriters on terms that are customarily made by issuers to Underwriters and shall, if requested by any Holder, enter into an underwriting agreement reflecting such agreement, as provided in Section 3(n) hereof.
(b) In connection with any registration Each Holder of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held Notes or Common Stock issued upon conversion thereof covered by the Foundation, as the Company or any underwriter reasonably requests for use in the a Shelf Registration Statement relating to such registration or the related Prospectus and severally agrees to indemnify and hold harmless (i) the Company, any underwriter(ii) each of its directors, (iii) each of its officers who signs such party's officers Shelf Registration Statement and directors and (iv) each Person person who controls each such party (the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by Act to the same extent as the foregoing indemnity from the Company to each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleadingHolder, but only with reference to the extent that any written information relating to such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation Holder furnished to the Company by or any underwriter by the Foundation or its counsel on behalf of such Holder specifically for inclusion therein. Notwithstanding in the documents referred to in the foregoing provisions of this Section 13(b), the Foundation shall not indemnity. This indemnity agreement will be liable in addition to the Company, any underwriter, each such parties' officers or directors, any other Person who controls liability which any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementHolder may otherwise have.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 5 of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may will, if a claim indemnification or contribution pursuant in respect thereof is to this Section 11 (provided that failure to give such notification shall not affect the obligations of be made against the indemnifying party pursuant to under this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above 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 participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from 's choice at the indemnifying party party's expense to such represent the indemnified party of its election so to assume the defense thereof, in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be liable to such responsible for the fees and expenses of any separate counsel retained by the indemnified party under this Section 11 for any legal expenses of other or parties except as set forth below); provided, however, that such counsel or any other expenses, in each case subsequently incurred by such shall be reasonably satisfactory to the indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoingindemnifying party's election to appoint 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 (and local counsel) if (i) the indemnifying party shall not have employed use of counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination chosen by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of represent the indemnified party its ability to finance would present such defensecounsel with a conflict of interest, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and such indemnified party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party whichparty, if (iii) the indemnifying party and such shall not have employed counsel reasonably satisfactory to the indemnified party were to be represented by represent the same counsel, could result in indemnified party within a conflict of interest for such counsel or materially prejudice the prosecution reasonable time after notice of the defenses available to institution of such indemnified partyaction, then such or (iv) the indemnifying party shall authorize the indemnified party shall have the right to employ separate counselcounsel at the expense of the indemnifying party; provided further, in which case that the indemnifying party shall not be responsible for the fees and expenses of more than one counsel or firm of separate counsel (plus one together with appropriate local or regulatory counsel or firm of counsel) selected by a majority in interest representing all the indemnified parties under paragraph (a)(i), paragraph (a)(ii) or paragraph (b) above. An indemnifying party will not, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall , settle or compromise or consent to the entry of any judgment with respect to any pending or enter into any settlement without the consent (which consentthreatened claim, in the case of an action, suit, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or proceeding exclusively seeking monetary reliefaction) unless such settlement, shall not be unreasonably withheld) compromise or consent includes an unconditional release of each indemnifying partyindemnified party from all liability arising out of such claim, action, suit or proceeding and does not include an admission of fault.
(d) If In the indemnification from event that the indemnifying party indemnity provided for in this Section 11 5(a) or (b) is unavailable to or insufficient to hold harmless an indemnified party hereunder in respect of for any losses, claims, damages, liabilities or expenses referred to thereinreason, then the each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall have a joint and several obligation to contribute to the amount paid or payable by such indemnified party as a result of such aggregate losses, claims, damages, damages and liabilities and (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively "Losses") to which such indemnified party may be subject in such proportion as is appropriate to reflect the relative fault 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 Underwriter be responsible for any amount in excess of the underwriting discount or commission applicable to the Notes and the Common Stock issued upon conversion thereof 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 actions statements or omissions which resulted in such losses, claims, damages, liabilities and expenses, Losses as well as any other relevant equitable considerations. The relative Benefits received by the Company shall be deemed to be equal to the sum of (x) the total net proceeds from the Initial Placement (before deducting expenses) and (y) the total amount of additional interest which the Company was not required to pay as a result of registering the Notes and the Common Stock issued upon conversion thereof covered by the Shelf Registration Statement which resulted in such Losses. Benefits received by any other Holders shall be deemed to be equal to the value of receiving the Notes or the Common Stock issuable upon conversion thereof registered under the 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 of such indemnifying party and indemnified party shall be determined by reference to, among other things, to whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied byprovided by the indemnifying party, such indemnifying party on the one hand, or by the indemnified party, and on the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceedinghand. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d)above. Notwithstanding the provisions of this Section 11(d5(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If indemnification is available under For purposes of this Section 115, each person who controls a Holder within the indemnifying parties meaning of either the Act or the Exchange Act and each director, officer, employee and agent of such Holder shall indemnify have the same rights to contribution as such Holder, and each indemnified party person who controls the Company within the meaning of either the Act or the Exchange 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 fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault applicable terms and conditions of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d5(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall 5 will remain in full force and effect irrespective effect, regardless of any investigation made by or on behalf of an indemnified partyany Holder or the Company or any of the officers, so long as such indemnified party is not guilty directors or controlling persons referred to in Section 5 hereof, and will survive the sale by a Holder of acting in Notes or Common Stock issuable upon conversion thereof covered by a fraudulent, reckless or grossly negligent mannerShelf Registration Statement.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Article IV, the Company shall will indemnify and hold harmless the Foundationeach underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its officers partners, (partners of partners and stockholders of any such partners), and directors, officers, employees and agents of any agent of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or investment adviser thereof Section 20 of the Exchange Act (a "Controlling Person"), from and against any and all losses, claims, damages, liabilities expenses and expenses liabilities, joint or several (including reasonable attorneys' fees any investigation, legal and expenses) other expenses incurred by such party pursuant to in connection with, and any actual or threatened amount paid in settlement of, any action, suit, suit or proceeding or investigation arising 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, insofar as such losses, claims, damages or liabilities arise out of or are based upon on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any Registration Statement, any Prospectus related preliminary or preliminary Prospectusdefinitive prospectus, or any amendment or supplement to any of the foregoingsuch registration statement or prospectus), or (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) it not misleading, except in each case insofar as or (iii) any violation by the same arise out Company of or are based uponthe 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 with respect to the Foundation furnished in writing to the Company by the Foundation such underwriter, Selling Holder or its counsel Controlling Person expressly for use thereinin such registration statement. In connection with an Underwritten OfferingWith respect to such untrue statement or omission or alleged untrue statement or omission in 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 other underwriter, the Company shall indemnify the underwriters thereof(including its directors, their officers, directors employees, shareholders 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 person who controls such underwriters (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, from and against any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities expenses and expenses (including reasonable attorneys' fees and expensesliabilities, 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. However, the liability of a Selling Holder for indemnification under this Section 4.5(a) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out shall not exceed the lesser of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any that proportion of the foregoingtotal of such losses, claims, damages or (ii) any omission or alleged omission liabilities indemnified against equal to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light proportion of the circumstances then existing) not misleading, but only to the extent that any total securities sold under such untrue registration statement or omission which is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt being sold by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, Selling Holder or (ii) the actual or potential defendants in, or targets of, any proceeds received by such action include both the indemnifying party and Selling Holder from its sale of Registrable Securities under such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partyregistration statement.
(db) If the indemnification from the indemnifying party provided for in this Section 11 4.5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, expenses or liabilities or expenses referred to therein, then the each indemnifying partyparty under this Section 4.5, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the other Selling Holders and the underwriters from the offering of the Registrable 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 indemnifying party Company, the other Selling Holders and indemnified party the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and expensesexpenses or liabilities, as well as any other relevant 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 and fees received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of such indemnifying party the Company, the Selling Holders and indemnified party the underwriters shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied byby the Company, such indemnifying party the Selling Holders or indemnified party, the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(d4.5(b) 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 above in this Section 11(d)the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d)However, 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation a Selling Holder shall not be required to contribute any amount under this Section 4.5(b) in excess of the amount by which lesser of (i) that proportion of the total price at which of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Securities sold under such registration statement which are being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of Registrable Securities under such untrue or alleged untrue statement or omission or alleged omissionregistration statement. No Person 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 person who was not found guilty of such fraudulent misrepresentation. If indemnification is available under .
(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 114.5 shall be deemed to include, subject to the indemnifying parties shall indemnify each limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party to the fullest extent provided in Section 11(a) connection with investigating or (b) hereofdefending any such action or claim, payable as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration same are incurred. The indemnification and contribution provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall 4.5 will remain in full force and effect irrespective regardless of any investigation made by or on behalf of an the indemnified partyparties or any officer, so long as such director, employee, agent or controlling person of the indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerparties.
Appears in 1 contract
Indemnification; Contribution. (a) The If any Registrable ----------------------------- Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the Foundation, its officers and directorsmeaning of the Securities Act, and each officer, director, partner, employee, agent, representative and attorney of such Selling Holder and such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and expenses) disbursements and reasonable expenses of investigation, incurred by such party Person pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any Registration Statement, any Prospectus preliminary prospectus or preliminary Prospectusfinal prospectus contained therein, or any amendment amendments or supplement to any of the foregoing, or supplements thereto;
(ii) any The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading; or
(in iii) Any violation or alleged violation by the case of a Prospectus or a preliminary Prospectus, in light Company of the circumstances then existing) Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 7.1 shall -------- ------- ----------- not misleadingapply to amounts paid in settlement of any such loss, except claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in each any such case insofar as for any such loss, claim, damage, liability or expense to the same arise extent that it arises solely out of or are is solely based upon, any such untrue statement or omission made upon a Violation which occurs in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company by the Foundation or its counsel indemnified party expressly for use therein. In in connection with such registration; provided, further, that the indemnity -------- ------- agreement contained in this Section 7 shall not apply to any underwriter to the --------- extent that any such loss is based on or arises out of an Underwritten Offeringuntrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the underwriters thereofdistribution, their officers, directors and directors, agents and employees and each Person person who controls such underwriters persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the FoundationSelling Holders.
7.2. Notwithstanding To the foregoing provisions extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of this Section 11(a)its directors, each of its officers who shall have signed the Company shall not be liable to the Foundationregistration statement, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other each Person, if any, who controls any such underwriter (the Company within the meaning of Section 15 of the Securities Act or Section 20 Act, any other Selling Holder, any controlling Person of the Exchange Act), under this Section 11 for any such lossother Selling Holder and each officer, claimdirector, damagepartner, liability (or action or proceeding in respect thereof) or expense that arises out employee, agent, representative and attorney of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or such other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person Selling Holder and such statement or omission was corrected in such final Prospectus controlling Person, against any and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and expenses) disbursements and reasonable expenses of investigation, incurred by each such party Person pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusViolation, in light of each case to the circumstances then existing) not misleading, but extent (and only to the extent extent) that any such untrue statement or omission is made Violation occurs in reliance on upon and in conformity with written information furnished by such Selling Holder expressly for use in connection with respect to such registration; provided, -------- however, that (x) the Foundation furnished to the Company or any underwriter indemnification required by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b)7.2 shall not ------- ----------- apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the Foundation consent of the relevant Selling Holder of Registrable Securities, which consent shall not be liable to unreasonably withheld, and (y) in no event shall the Company, amount of any underwriter, each indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by ----------- such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementSelling Holder.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party 7.3. Promptly after the receipt by such an indemnified party under this Section 7 of any written notice of the commencement of any action, suit, proceeding or proceeding, --------- investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 7, such indemnified party shall deliver to give such notification shall not affect the obligations of --------- the indemnifying party pursuant a written notice of the commencement thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall -------- ------- have the right to retain its own counsel, with counsel reasonably satisfactory the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for ------- 7 but shall not relieve the indemnifying party of any legal liability that it may have - to any indemnified party otherwise than pursuant to this Section 7. Any fees --------- and expenses of other counsel or any other expenses, in each case subsequently incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the right to employ separate counsel in connection with any such action, claim or proceeding and to participate in the defense thereof other than reasonable costs thereof, but the fees and expenses of investigation. Notwithstanding such counsel shall be the foregoing, if expenses of such indemnified party unless (i) the indemnifying party shall not have employed counsel reasonably satisfactory has agreed to pay such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, fees and expenses or (ii) the actual indemnifying party shall have failed to promptly assume the defense of such action, claim or potential defendants in, proceeding or targets of, (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both the indemnifying party and such indemnified party and the indemnifying party, and such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it which are different from or additional in addition to those available to the indemnifying party which, if and that the indemnifying party and assertion of such indemnified party were to be represented by the same counsel, could result in defenses would create a conflict of interest for such that counsel or materially prejudice employed by the prosecution indemnifying party could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the defenses available indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, then it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party shall have the right a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to employ separate counselsuch action, claim or proceeding, in which case event the indemnifying party shall be obligated to pay the fees and expenses of one such additional counsel or firm counsels). No indemnifying party shall be liable to an indemnified party for any settlement of counsel (plus one local any action, proceeding or regulatory counsel or firm of counsel) selected by a majority in interest claim without the written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, which consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) 7.4. If the indemnification required by this Section 7 from --------- the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.7: ---------
Appears in 1 contract
Sources: Registration Rights Agreement (Firearms Training Systems Inc)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless (i) each Holder covered by any Company Registration Statement, (ii) each other Person who participates as an underwriter in the Foundationoffering or sale of such securities, its officers (iii) each person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the persons referred to in this clause (iii) being hereinafter referred to as a “controlling person”) and (iv) the respective officers, directors, partners, employees, representatives and agents of any agent such Holder or investment adviser thereof underwriter or any controlling person (any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an “indemnified Person”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and expenses liabilities, judgments or expenses, joint or several (including reasonable attorneys' fees and expensesor actions or proceedings, whether commenced or threatened, in respect thereof) incurred by (collectively, “Claims”), to which such party pursuant to any actual indemnified Person may become subject under either Section 15 of the Securities Act or threatened actionSection 20 of the Exchange Act or otherwise, suit, proceeding or investigation arising insofar as such Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in any Company Registration Statement, any Statement or Prospectus or preliminary Prospectus, (or any amendment or supplement to any of the foregoingthereto), or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, or a violation by the Company of the Securities Act or any state securities law, or any rule or regulation promulgated under the Securities Act or any state securities law, or any other law applicable to the Company relating to any such registration or qualification, except in each case insofar as the same arise out such losses, claims, damages, liabilities, judgments or expenses of or any such indemnified Person; (x) are based upon, caused by any such untrue statement or omission made or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in reliance writing to the Company by or on and in conformity with information behalf of any of such indemnified Person expressly for use therein; (y) with respect to the Foundation furnished preliminary Prospectus, result from the fact that such Holder sold Securities to a person to whom there was not sent or given, at or prior to the Company by written confirmation of such sale, a copy of the Foundation Prospectus, as amended or its counsel expressly for use therein. In connection with an Underwritten Offeringsupplemented, if the Company shall indemnify have previously furnished copies thereof to such Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or omission; or (z) as a result of the underwriters use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such securities by such Holder. In case any action shall be brought or asserted against any of the indemnified Persons with respect to which indemnity may be sought against the Company, such indemnified Person shall promptly notify the Company and the Company shall assume the defense thereof with counsel reasonably satisfactory to the indemnified Persons, it being understood and agreed that the Company’s regular outside counsel is acceptable for such purpose. Such indemnified Person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, their officersbut the fees and expenses of such counsel shall be at the expense of the indemnified Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, directors (ii) the Company shall have failed to assume the defense and agents employ counsel or (iii) the named parties to any such action (including any implied parties) include both the indemnified Person and the Company and the indemnified Person shall have been advised in writing by its counsel that there may be one or more legal defenses available to it which are materially different from or additional to those available to the Company, it being understood, however, that the Company shall not, in connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. The Company shall not be liable for any settlement of any such action or proceeding effected without the Company’s prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, which shall not be unreasonably withheld, settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any indemnified Person who controls is a party thereto), unless such underwriters settlement, compromise, consent or termination includes an unconditional release of each indemnified Person from all liability arising out of such action, claim litigation or proceeding.
(b) Each Holder of Registrable Securities covered by any Company Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each person, to the same extent as provided above the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) (x) with respect to actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any Company Registration Statement or Prospectus, (y) with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundationpreliminary Prospectus, any Person who participates as an underwriter in matters which result from the offering fact that such Holder sold Securities to a person to whom there was not sent or sale of Registrable Securities given, at or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale such sale, a copy of the Registrable Securities to such Person and such statement Prospectus, as amended or omission was corrected in such final Prospectus and supplemented, if the Company had shall have previously and timely furnished sufficient copies thereof to the Foundation such Holder in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company Agreement and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundationsaid Prospectus, as the Company amended or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Companysupplemented, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any would have corrected such untrue statement or omission is made in reliance on and in conformity with information with respect to omission; or (z) such matters which result from the Foundation furnished to use by an indemnified Person of any Prospectus when, upon receipt of a notice from the Company or of the existence of any underwriter by fact of the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this kind described in Section 13(b2.3(b)(iv), the Foundation shall indemnified Person or the related Holder was not be liable permitted to the Companydo so, any underwriter, each such parties' officers or directors, any other Person who controls any such party and (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(cii) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent of the indemnifying party shall have been actually prejudiced as a result gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Registrable Securities covered by such failure)Company Registration Statement. In case any such action or proceeding shall be brought against the Company or its directors or officers or any indemnified party such controlling person in respect of which indemnity may be sought against a Holder of Registrable Securities covered by any Company Registration Statement, such Holder shall have the rights and it duties given the Company in Section 2.7 (except that the Holder may but shall notify the indemnifying party of the commencement thereof, the indemnifying party shall not be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, required to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to Company or its directors or officers or such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party controlling person shall have the right rights and duties given to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.each
Appears in 1 contract
Indemnification; Contribution. (ai) The Company shall shall, without limitation as to time, indemnify and hold harmless harmless, to the Foundationfull extent permitted by law, its officers and each Stockholder, the officers, directors, and any agent or investment adviser thereof against all lossesmembers, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and employees of each of them, each Person who controls each such underwriters Person (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) ), the officers, directors, agents and employees of each such controlling person and any financial or investment adviser (each, an "INDEMNIFIED STOCKHOLDER"), to the same fullest extent lawful, from and against any and all losses, claims, damages, liabilities, actions or proceedings (whether commenced or threatened) reasonable costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (including reasonable expenses of investigation) (collectively, "LOSSES"), as provided above with respect incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or form of prospectus or in any amendment or supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the indemnification extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by the Company to such Stockholder expressly for use in such Registration Statement or prospectus and that such statement or omission was reasonably relied upon by such Stockholder in preparation of such Registration Statement, prospectus or form of prospectus; provided, however, that the Foundation. Notwithstanding Company shall not be liable in any such case to the foregoing provisions extent that the Company has furnished in writing to such Stockholder within a reasonable period of this Section 11(a)time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to such Stockholder, and such Stockholder failed to include such information therein; provided, further, however, that the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (underwriter(s) within the meaning of Section 15 of the Securities Act or Section 20 of to the Exchange Act), under this Section 11 for extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the any preliminary Prospectus prospectus if the Foundation, or other (A) such Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim prior to from which such Losses arise, (B) the written confirmation of the sale of the Registrable Securities to prospectus would have corrected such Person and such untrue statement or alleged untrue statement or such omission was corrected in such final Prospectus or alleged omission, and (C) the Company had previously has complied with its obligations under Section 4(e)(iii). Each indemnity and timely furnished sufficient copies thereof to the Foundation reimbursement of costs and expenses shall remain in accordance with this Agreementfull force and effect regardless of any investigation made by or on behalf of such Indemnified Stockholder.
(bii) In connection with any registration Registration Statement in which a Stockholder is participating, such Stockholder, or an authorized officer of Registrable Securities pursuant to this Agreementsuch Stockholder, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, information as the Company or any underwriter reasonably requests for use in the connection with any Registration Statement relating or prospectus and agrees, severally and not jointly, to such registration or indemnify, to the related Prospectus and agrees to indemnify and hold harmless full extent permitted by law, the Company, any underwriterits directors, each such party's officers officers, agents and directors and employees, each Person who controls each such party the Company (within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act), and any agent the directors, officers, agents or investment adviser thereof employees of such controlling persons (each, an "INDEMNIFIED COMPANY", and together with the Indemnified Stockholders, the "INDEMNIFIED PARTIES"), from and against all lossesLosses, claimsas incurred, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus prospectus or preliminary Prospectus, form of prospectus or in any amendment or supplement to supplements thereto or in any of the foregoingpreliminary prospectus, or (ii) arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except to the extent, but only to the extent extent, that any such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by such Stockholder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to was reasonably relied upon by the Company in preparation of such Registration Statement, prospectus or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions form of this Section 13(b)prospectus; provided, the Foundation however, that such Stockholder shall not be liable in any such case to the extent that such Stockholder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any underwriter, each such parties' officers or directors, any other Person who controls any such party (within selling Stockholder hereunder be greater in amount than the meaning of Section 15 after-tax dollar amount of the Securities Act or Section 20 proceeds (net of payment of all expenses) received by such Stockholder upon the sale of the Exchange Act), Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion on behalf of such untrue statement or omission in the Registration StatementIndemnified Company.
(ciii) Any Person entitled to indemnification hereunder agrees to Indemnified Party shall give prompt written notice to the indemnifying party after or parties from which such indemnity is sought (the receipt by such indemnified party of any written notice "INDEMNIFYING PARTIES") of the commencement of any action, suit, proceeding or investigation or written threat thereof made in writing for (a "PROCEEDING") with respect to which such indemnified party may claim Indemnified Party seeks indemnification or contribution pursuant to this Section 11 (provided hereto; provided, however, that the failure to give such notification so notify the Indemnifying Parties shall not affect relieve the obligations of the indemnifying party pursuant to this Section 11 Indemnifying Parties from any obligation or liability except to the extent that the indemnifying party Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall have been actually prejudiced as a result the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such failure). In case Proceeding, to assume, at the Indemnifying Parties' expense, the defense of any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofProceeding, with counsel reasonably satisfactory to such indemnified party Indemnified Party; provided, however, that an Indemnified Party or Indemnified Parties (who if more than one such Indemnified Party is named in any Proceeding) shall nothave the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, except with but the consent fees and expenses of such counsel shall be at the indemnified party, be counsel expense of such Indemnified Party or Indemnified Parties unless: (x) the Indemnifying Parties agree to pay such fees and expenses; (y) the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so Indemnifying Parties fail promptly to assume the defense thereof, the indemnifying party shall not be liable of such Proceeding or fail to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed employ counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) Indemnified Party or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, Indemnified Parties; or (iiz) the actual or potential defendants in, or targets of, named parties to any such action Proceeding (including any impleaded parties) include both such Indemnified Party or Indemnified Parties and the indemnifying party Indemnifying Parties, and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal one or more defenses available to it which such Indemnified Party or Indemnified Parties that are different from or additional to those available to the indemnifying party whichIndemnifying Parties, in which case, if such Indemnified Party or Indemnified Parties notifies the indemnifying party and such indemnified party were Indemnifying Parties in writing that it elects to be represented by employ separate counsel at the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution expense of the defenses available to such indemnified partyIndemnifying Parties, then such indemnified party the Indemnifying Parties shall not have the right to employ separate counselassume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in which case connection with any one such Proceeding or separate but substantially similar or related Proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one together with appropriate local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne at any time for such Indemnified Party or Indemnified Parties. Whether or not such defense is assumed by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties Indemnifying Parties, such Indemnifying Parties or Indemnified Party or Indemnified Parties will not be subject to any liability for any settlement made without its or their consent (but such consent will not be unreasonably withheld). The Indemnifying Parties shall be paid by the indemnified parties. No indemnified party shall not consent to entry of any judgment or enter into any settlement which (A) provides for other than monetary damages without the consent of the Indemnified Party or Indemnified Parties (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, consent shall not be unreasonably withheldwithheld or delayed) or (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or Indemnified Parties of each indemnifying partya release, in form and substance satisfactory to the Indemnified Party or Indemnified Parties, from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to indemnification hereunder.
(div) If the indemnification from the indemnifying party provided for in this Section 11 4(g) is unavailable to an indemnified party hereunder Indemnified Party or is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities or expenses referred to thereinwhich this Section 4(g) would otherwise apply by its terms, then the indemnifying partyeach applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have a joint and several obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of and relative benefit to the indemnifying party Indemnifying Party, on the one hand, and indemnified party such Indemnified Party, on the other hand, in connection with the actions which actions, statements or omissions that resulted in such losses, claims, damages, liabilities and expenses, Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party Indemnifying Party, on the one hand, and indemnified party Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, include any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 4(g)(i) or proceeding4(g)(ii) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d4(g)(iv) were determined by pro pro-rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 11(d4(g)(iv). Notwithstanding the provisions of this Section 11(d4(g)(iv), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation an Indemnifying Party that is a selling Stockholder shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public net after-tax proceeds received by such Indemnifying Party exceeds the amount of any damages which the Foundation that such Indemnifying Party has otherwise been required to pay by reason reasons of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Stockholders Agreement (Thayer Equity Investors Iii Lp)
Indemnification; Contribution. (a) The Company shall shall, without limitation as to time, indemnify and hold harmless harmless, to the Foundationfull extent permitted by law, its officers and each Stockholder, the officers, directors, and any agent or investment adviser thereof against all lossesmembers, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and employees of each of them, each Person who controls each such underwriters Person (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) ), the officers, directors, agents and employees of each such controlling person and any financial or investment adviser (each, an "Indemnified Stockholder"), to the same fullest extent lawful, from and against any and all losses, claims, damages, liabilities, actions or proceedings (whether commenced or threatened) reasonable costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (including reasonable expenses of investigation) (collectively, "Losses"), as provided above with respect incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or form of prospectus or in any amendment or supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the indemnification extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by the Company to such Stockholder expressly for use in such Registration Statement or prospectus and that such statement or omission was reasonably relied upon by such Stockholder in preparation of such Registration Statement, prospectus or form of prospectus; provided, however, that the Foundation. Notwithstanding Company shall not be liable in any such case to the foregoing provisions extent that the Company has furnished in writing to such Stockholder within a reasonable period of this Section 11(a)time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to such Stockholder, and such Stockholder failed to include such information therein; provided, further, however, that the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (underwriter(s) within the meaning of Section 15 of the Securities Act or Section 20 of to the Exchange Act), under this Section 11 for extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the any preliminary Prospectus prospectus if the Foundation, or other (A) such Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim prior to from which such Losses arise, (B) the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was prospectus would have corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and (C) the Company has complied with its obligations under Section 7(e)(iii). No Person guilty Each indemnity and reimbursement of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party costs and shall survive any termination of this Agreement. The indemnification provided by this Section 11 expenses shall remain in full force and effect irrespective regardless of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerIndemnified Stockholder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company To the extent permitted by law, Hybridon shall indemnify each Holder and hold harmless each person controlling such Holder within the Foundationmeaning of Section 15 of the Securities Act, its officers and directorswith respect to which any registration, and any agent qualification or investment adviser thereof compliance has been effected pursuant to this Article II, against all claims, losses, claimsdamages and liabilities (or action in respect thereof), damagesincluding any of the foregoing incurred in settlement of any litigation, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual commenced or threatened action(subject to Subsection 7(c) below), suit, proceeding or investigation arising out of or based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any Registration Statementregistration statement, any Prospectus prospectus or preliminary Prospectusoffering circular, or any amendment or supplement thereof, incident to any of the foregoingsuch registration, qualification or compliance, or (ii) based on any omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectusnot misleading, in light of the circumstances then existing) not misleadingin which they were made, except and shall reimburse each Holder and each person controlling such Holder for legal and other expenses reasonably incurred in each case insofar as the same arise out of connection with investigating or are based upon, defending any such claim, loss, damage, liability or action as incurred; provided that Hybridon shall not be liable in any such case to the extent that any untrue statement or omission or allegation thereof is made in reliance on upon and in conformity with information with respect to the Foundation furnished to the Company Hybridon by the Foundation or its counsel expressly on behalf of such Holder and stated to be specifically for use therein. In connection with an Underwritten Offeringin preparation of such registration statement, the Company shall indemnify the underwriters thereofprospectus or offering circular; provided, their officersfurther, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company that Hybridon shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within case where the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)claim, under this Section 11 for any such loss, claim, damage, damage or liability (or action or proceeding in respect thereof) or expense that arises out of an or is related to the failure of the Holder to comply with the covenants and agreements contained in this Article II respecting sales of Registrable Securities, and except that the foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such untrue statement or alleged untrue statement or omission or alleged omission made in the preliminary Prospectus if prospectus but eliminated or remedied in the Foundation, amended prospectus on file with the Commission at the time the registration statement becomes effective or other Person on behalf in the amended prospectus filed with the Commission pursuant to Rule 424(b) of the FoundationSecurities Act or in the prospectus subject to completion and term sheet under Rule 434 of the Securities Act, failed which together meet the requirements of Section 10(a) of the Securities Act (the "Final Prospectus"), such indemnity agreement shall not inure to send the benefit of any such Holder or deliver any such controlling person, if a copy of a final the Final Prospectus furnished by Hybridon to the Person Holder for delivery was not furnished to the person or entity asserting the loss, liability, claim or damage at or prior to the written confirmation of time such furnishing is required by the sale of Securities Act and the Registrable Securities Final Prospectus would have cured the defect giving rise to such Person and such statement loss, liability, claim or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementdamage.
(b) In connection with any registration of Registrable Securities pursuant to this AgreementEach Holder will severally, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of if Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use such Holder are included in the Registration Statement relating securities as to which such registration registration, qualification or the related Prospectus and agrees to compliance is being effected, indemnify and hold harmless the Company, any underwriterHybridon, each such party's of its directors and officers and directors and each Person other person who controls each such party (Hybridon within the meaning of Section 15 of the Securities Act Act, against all claims, losses, damages and liabilities (or Section 20 actions in respect thereof), including any of the Exchange Actforegoing incurred in settlement of any litigation, commenced or threatened (subject to Subsection 7(c) below), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any Registration Statementregistration statement, any Prospectus prospectus or preliminary Prospectusoffering circular, or any amendment or supplement thereof, incident to any of the foregoingsuch registration, qualification or compliance, or (ii) based on any omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectusnot misleading, in light of the circumstances then existing) not misleadingin which they were made, and will reimburse Hybridon, such directors and officers and each other person controlling Hybridon for reasonable legal and any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action as incurred, in each case to the extent, but only to the extent extent, that any such untrue statement or omission or allegation thereof is made in reliance on upon and in conformity with written information with respect furnished to Hybridon by or on behalf of the Holder and stated to be specifically for use in preparation of such registration statement, prospectus or offering circular; provided that the indemnity shall not apply to the Foundation furnished extent that such claim, loss, damage or liability results from the fact that a current copy of the prospectus was not made available to the Company Holder and such current copy of the prospectus would have cured the defect giving rise to such loss, claim, damage or any underwriter by the Foundation or its counsel specifically for inclusion thereinliability. Notwithstanding the foregoing provisions of this Section 13(b)foregoing, the Foundation in no event shall not a Holder be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls for any such party (within the meaning of Section 15 claims, losses, damages or liabilities in excess of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of proceeds received by such untrue statement or omission Holder in the Registration Statementoffering, except in the event of fraud by such Holder.
(c) Any Person Each party entitled to indemnification hereunder agrees to under this Section 7 of this Article II (the "Indemnified Party") shall give prompt written notice to the indemnifying party required to provide indemnification (the "Indemnifying Party") promptly after the receipt by such indemnified party Indemnified Party has actual knowledge of any written notice of claim as to which indemnity may be sought, and shall permit the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, Indemnifying Party to assume the defense thereofof any such claim or any litigation resulting therefrom, with provided that counsel reasonably satisfactory to such indemnified party (for the Indemnifying Party, who shall notconduct the defense of such claim or litigation, except with shall be approved by the consent of the indemnified party, Indemnified Party (whose approval shall not unreasonably be counsel to the indemnifying partywithheld), and after the Indemnified Party may participate in such defense at such Indemnified Party's expense, and provided further that the failure of any Indemnified Party to give notice from as provided herein shall not relieve the indemnifying party to such indemnified party Indemnifying Party of its election so obligations under this Agreement, unless such failure is materially prejudicial to assume the defense thereof, the indemnifying party Indemnifying Party in defending such claim or litigation. An Indemnifying Party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result settlement of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) action or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party claim effected without its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the written consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall consent will not be unreasonably withheld) of each indemnifying party).
(d) If the indemnification from the indemnifying party provided for in this Section 11 7 of this Article II is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in Indemnified Party with respect of to any lossesloss, claimsliability, damagesclaim, liabilities damage or expenses expense referred to therein, then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party thereunder, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesloss, claimsliability, damagesclaim, liabilities and expenses damage or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party on the one hand and indemnified party of the Indemnified Party on the other in connection with the actions statements or omissions which resulted in such lossesloss, claimsliability, damagesclaim, liabilities and expenses, damage or expense as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Indemnifying Party and indemnified party of the Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged the omission to state a material fact, has been made by, or fact relates to information supplied by, such indemnifying party by the Indemnifying Party or indemnified party, by the Indemnified Party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Exchange Agreement (Hybridon Inc)
Indemnification; Contribution. (a) The Company shall Developer agrees to indemnify and hold harmless the Foundation, its officers Issuer and directors, and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statementthe Underwriter, any Prospectus director, officer, employee or preliminary Prospectus, or any amendment or supplement to any controlling person of the foregoing, Issuer or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (Underwriter within the meaning of Section 15 of the Securities 1933 Act or Section 20 of (collectively, the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a“Indemnified Parties”), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred whatsoever caused by any untrue statements or misleading statement or allegedly misleading statement of a material fact contained in the Limited Offering Memorandum or caused by any omission or alleged omission from the Limited Offering Memorandum of any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; provided that the Developer shall have no indemnification obligation with respect to any statement or omission in the information contained in the Limited Offering Memorandum under the headings “INTRODUCTION – The Issuer,” NO LITIGATION – The Issuer, and “UNDERWRITING.” In case any action shall be brought against one or more of the Indemnified Parties based upon the Limited Offering Memorandum and in respect of which indemnity may be sought against the Developer, the Indemnified Parties shall promptly notify the Developer in writing and the Developer shall promptly assume the defense thereof, including the employment of counsel, the payment of all expenses and the right to negotiate and consent to settlement. Any one or more of the Indemnified Parties shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Indemnified Parties unless employment of such counsel has been specifically authorized by the Developer. The Developer shall not be liable for any settlement of any such action effected without its consent by any of the Indemnified Parties, but if settled with the consent of the Developer or if there be a final judgment for the plaintiff in any such action against the Developer or any of the Indemnified Parties, with or without the consent of the Developer, the Developer agrees to indemnify and hold harmless the Indemnified Parties to the extent provided herein. If a claim for indemnification under this Section is determined to be unenforceable by a final judgment of a court of competent jurisdiction, then the indemnifying party, in lieu of indemnifying such indemnified party, Developer shall contribute to the amount paid or payable by such indemnified party as a result of such aggregate losses, claims, damagesdamages or liabilities to which the Underwriter or its officers, liabilities and expenses directors, agents, employees or controlling persons may be subject in such proportion amount as is appropriate to reflect the relative fault of benefits received by the indemnifying party and indemnified party in connection with Developer, on the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified partyone hand, and the parties' Underwriter, on the other, and the relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result faults of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission Developer and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionperson seeking contribution. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination the delivery of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerthe 2022 Bonds hereunder.
Appears in 1 contract
Sources: Bond Purchase Agreement
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company shall will indemnify and hold harmless the Foundationeach underwriter, each Holder or Other Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its officers partners (including partners of partners and stockholders of any such partners), and directors, officers, employees and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out agents of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoingthem (a "Selling Holder"), or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person person who controls such underwriters (any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to Act (a "Controlling Person")), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (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 claim asserted, as the same extent 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, insofar as provided above with respect 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 indemnification statements in it not misleading, or (iii) any violation by the Company of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a)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 shall will not be liable to the Foundation-------- ------- extent that such loss, any 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 who participates as an underwriter expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the offering or sale 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 Registrable Securities or partners and stockholders of such partners) and directors, officers, employees and agents of any other Personof them, if any, and each person who controls any such underwriter (of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for from and against any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities expenses and expenses (including reasonable attorneys' fees and expenses) incurred by each 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; provided, however, that no Selling Holder shall -------- ------- be required to indemnify any Person against any liability arising from any untrue or misleading statement or omission contained in any preliminary prospectus if such party pursuant to deficiency is corrected in the final prospectus or for any actual or threatened action, suit, proceeding or investigation arising liability which arises out of or based upon the failure of any Person to deliver a prospectus as required by the Securities Act. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 4.4(a) exceed the lesser of (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any such Selling Holder's pro rata share of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion total of such untrue statement losses, claims, damages or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, liabilities or (ii) the actual or potential defendants in, or targets of, any proceeds received by such action include both the indemnifying party and Selling Holder from its sale of Registrable Securities under such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partyregistration statement.
(db) If the indemnification from the indemnifying party provided for in this Section 11 4.4(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, expenses or liabilities or expenses referred to therein, then the each indemnifying partyparty under this Section 4.4, in lieu of indemnifying such indemnified partyparty thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the other Selling Holders and the underwriters from the offering of the Registrable 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 indemnifying party Company, the other Selling Holders and indemnified party the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and expensesexpenses or liabilities, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand under Section 4.2 and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the other Selling Holders and the underwriters shall in all cases be governed by clause (ii) above. 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 cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of such indemnifying party the Company, the Selling Holders and indemnified party the underwriters shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied byby the Company, such indemnifying party the Selling Holders or indemnified party, the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The amount paid or payable by a party as a result of Company, the lossesSelling Holders, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(d4.4(b) 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 above in this Section 11(d)the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d)In no event, no underwriter however, shall a Selling Holder be required to contribute any amount under this Section 4.4(b) in excess of the amount by which lesser of (i) such Selling Holder's pro rata share of the total price at which of such losses, claims, damages or liabilities or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which under such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionregistration statement. No Person 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 person who was not found guilty of such fraudulent misrepresentation. If indemnification is available under .
(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 114.4 shall be deemed to include, subject to the indemnifying parties shall indemnify each limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party to the fullest extent provided in Section 11(a) connection with investigating or (b) hereofdefending any such action or claim, payable as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration same are incurred. The indemnification and contribution provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall 4.4 will remain in full force and effect irrespective regardless of any investigation made by or on behalf of an the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the defense of any such claim or litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, so long as such indemnified party is which consent will not guilty of acting in a fraudulent, reckless or grossly negligent mannerbe unreasonably withheld.
Appears in 1 contract
Sources: Stockholders and Rights Agreement (Click Commerce Inc)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the Foundation, its officers and directors, and Sutro against any agent or investment adviser thereof against all losses, claims, damagesdamages or liabilities, joint or several, to which Sutro may become subject, under the Act, the Exchange Act or otherwise, specifically including, but not limited to, losses, claims, damages or liabilities and expenses (including reasonable attorneys' fees and expensesor actions in respect thereof) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any breach of any representation, warranty, agreement or covenant of the Company herein contained, (ii) any untrue statement or alleged untrue statement of any material fact contained in any the Registration Statement, any Prospectus or preliminary Prospectus, Statement or any amendment or supplement to any of the foregoingthereto, or (ii) any the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, (iii) any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Preliminary Prospectus or preliminary Prospectus, the Prospectus or any amendment or supplement to any of the foregoingthereto, or (ii) any the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) under which they were made, not misleading, but only and agrees to reimburse Sutro 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 shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission is or alleged omission made in the Registration Statement, such Preliminary Prospectus or the Prospectus, or any such amendment or supplement thereto, in reliance on upon, and in conformity with with, written information with respect relating to the Foundation Sutro furnished to the Company by Sutro, specifically for use in the preparation thereof and, PROVIDED FURTHER, that the indemnity agreement provided in this Section 6(a) with respect to any Preliminary Prospectus shall not inure to the benefit of Sutro from whom the person asserting any losses, claims, damages, liabilities or actions based upon any underwriter untrue statement or alleged untrue statement of material fact or omission or alleged omission to state therein a material fact purchased Shares, if a copy of the Prospectus in which such untrue statement or alleged untrue statement or omission or alleged omission was corrected had not been sent or given to such person within the time required by the Foundation or its counsel specifically for inclusion thereinAct and the Rules and Regulations, unless such failure is the result of noncompliance by the Company with Section 3(d) hereof. Notwithstanding the foregoing provisions of The indemnity agreement in this Section 13(b)6(a) shall extend upon the same terms and conditions to, the Foundation and shall not be liable inure to the Company, any underwriterbenefit of, each such parties' officers or directorsofficer, any other Person employee and affiliate of Sutro and each person, if any, who controls any such party (Sutro within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or . This indemnity agreement shall be in addition to any agent or investment advisor thereof, if liabilities which the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementCompany may otherwise have.
(cb) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 6 of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may shall, if a claim indemnification or contribution pursuant in respect thereof is to be made against any indemnifying party under this Section 11 (provided that failure to give such notification shall not affect the obligations of 6, notify the indemnifying party pursuant in writing of the commencement thereof but the omission so to this Section 11 except to the extent notify the indemnifying party shall will not relieve it from any liability which it may have been actually prejudiced as a result of such failure)to any indemnified party otherwise than under this Section 6. In case any such action shall be is brought against any indemnified party party, and it shall notify notified the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying elect by written notice delivered to the indemnified party similarly notifiedpromptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall notparty; PROVIDED, except with the consent of the indemnified partyHOWEVER, be counsel to the indemnifying 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, in any such action include both the indemnified party and the indemnifying party and such indemnified party and such the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party whichparty, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party parties shall have the right to employ select separate counsel, counsel to assume such legal defenses and to otherwise participate in which case the fees and expenses defense of one counsel such action on behalf of such indemnified party or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry Upon receipt of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification notice from the indemnifying party provided for in this Section 11 is unavailable to an such indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party's election so to assume the defense of such action and approval by the indemnified party of counsel, in lieu of the indemnifying such indemnified party, shall contribute party will not be liable to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in under this Section 11(c) hereof, 6 for any legal and or other fees and expenses reasonably subsequently incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that it would the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with appropriate local counsel) approved by the indemnifying party representing all the indemnified parties under Section 6(a), hereof who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. In no event shall any indemnifying party be liable in respect of any amounts paid in settlement of any action unless the indemnifying party shall have approved the terms of such settlement; PROVIDED that such consent shall not be unreasonably withheld. 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 indemnification could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on all claims that are the subject matter of such proceeding.
(c) In order to provide for just and equitable if contribution in any action in which a claim for indemnification is made pursuant to this Section 11(d) were 6 but it is judicially determined (by pro rata allocation the entry of a final judgment or decree by any other method a court of allocation which does not take account competent jurisdiction and the expiration of time to appeal or the denial of the equitable considerations referred to above last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 11(d). Notwithstanding 6 provides for indemnification in such case, all the provisions of this Section 11(d), no underwriter parties hereto 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 were offered aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion so that Sutro is responsible for the portion represented by the percentage that the selling commission bears 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 aggregate sales price, and the Foundation shall not be required to contribute any amount in excess of Company is responsible for the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person remaining portion, PROVIDED, HOWEVER, that no person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for The contribution agreement in this Section 11(d).
(e6(c) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party extend upon the same terms and conditions to, and shall survive any termination inure to the benefit of, each person, if any, who controls Sutro, or the Company within the meaning of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by the Act or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerthe Exchange Act.
Appears in 1 contract
Indemnification; Contribution. If any Restricted Shares are included in a registration statement under this Agreement:
(a) The Company To the extent permitted by applicable law, BermudaCo and LuxCo shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the Foundation, its officers and directorsmeaning of the Securities Act, and each officer, director, Partner, principal and employee of such Selling Holder and such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and expenses) disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any Registration Statement, any Prospectus preliminary prospectus or preliminary Prospectusfinal prospectus contained therein, or any amendment amendments or supplement to any of the foregoing, or supplements thereto;
(ii) any The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading; or
(in the case of a Prospectus iii) Any violation or a preliminary Prospectus, in light alleged violation by BermudaCo or LuxCo of the circumstances then existingSecurities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 4.06(a) shall not misleadingapply to amounts paid in settlement of any such loss, except claim, damage, liability or expense if such settlement is effected without the consent of BermudaCo or LuxCo (which consent shall not be unreasonably withheld), nor shall BermudaCo or LuxCo be liable in each any such case insofar as for any such loss, claim, damage, liability or expense to the same arise extent that it arises out of or are is based upon, any such untrue statement or omission made upon a Violation which occurs in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company BermudaCo or LuxCo by the Foundation or its counsel indemnified party expressly for use therein. In in connection with an Underwritten Offering, the Company such Registration. BermudaCo and LuxCo shall also indemnify the underwriters thereof, their officers, directors and agents and each Person person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding Selling Holders; provided, however, that the foregoing provisions of indemnity agreement contained in this Section 11(a), the Company 4.06 shall not be liable apply to any underwriter or person who controls any underwriter to the Foundationextent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any Person preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so.
(b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless each of BermudaCo and LuxCo, each of their respective directors, each of their respective officers who participates as an underwriter in shall have signed the offering or sale of Registrable Securities or any other registration statement, each Person, if any, who controls BermudaCo or LuxCo within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such underwriter other Selling Holder and each officer, director, Partner, principal and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys' fees and disbursements and expenses of investigation, incurred by such underwriters party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder expressly for use in connection with such Registration; provided, however, that (x) the indemnification required by this Section 4.06(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of BermudaCo Shares in respect of Restricted Shares, which consent shall not be unreasonably withheld, and (y) in no event shall the amount of any indemnity under this Section 4.06(b) exceed the net proceeds from the applicable offering received by such Selling Holder. The Selling Holders shall also indemnify underwriters and each person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)) to the same extent as provided above with respect to the indemnification of BermudaCo and LuxCo; provided, under however, that the indemnity agreement contained in this Section 11 for 4.06 shall not apply to any underwriter or person who controls any underwriter to the extent that any such loss, claim, damage, liability (loss is based on or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundationof a material fact, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any an omission or alleged omission to state therein a material fact required to be stated therein fact, contained in or necessary to make omitted from any preliminary prospectus if the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any final prospectus shall correct such untrue statement or alleged untrue statement, or such omission is made in reliance on or alleged omission, and in conformity with information with respect a copy of the final prospectus has not been sent or given to such person at or prior to the Foundation furnished confirmation of sale to the Company or any such person if such underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable was under an obligation to the Company, any underwriter, each deliver such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient final prospectus and failed to prevent the inclusion of such untrue statement or omission in the Registration Statementdo so.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 4.06 of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 4.06, such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice of the commencement thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereof, thereof with counsel reasonably mutually satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel parties. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for 4.06 to the extent of such material prejudice, but shall not relieve the indemnifying party of any legal liability that it may have to any indemnified party otherwise than pursuant to this Section 4.06. Any reasonable fees and expenses of other counsel or any other expenses, in each case subsequently incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) for which the indemnifying party is liable pursuant to this Section 4.6 shall be paid to the indemnified party, in connection with the defense as incurred, within thirty (30) days of written notice thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then . Any such indemnified party shall have the right to employ separate counselcounsel in any such action, claim or proceeding and to participate in which case the defense thereof, but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by such indemnified party unless (i) the indemnifying party and the has agreed to pay such fees and expenses of all other counsel retained by or (ii) the indemnified parties shall be paid by the indemnified parties. No indemnified indemnifying party shall consent have failed to entry promptly assume the defense of any judgment or enter into any settlement without the consent (which consent, in the case of an such action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partyproceeding.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Shareholders Agreement (Monday LTD)
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless the Foundation, its officers each Indemnitee from and directors, against any and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statementprepricing prospectus, any Prospectus registration statement or preliminary Prospectus, prospectus or in any amendment or supplement to any of the foregoingthereto, or (ii) arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same such losses, claims, damages, liabilities or expenses arise out of or are based upon, upon any such untrue statement or omission or alleged untrue statement or omission which has been made therein or omitted therefrom in reliance on upon and in conformity with the information with respect relating to the Foundation a participating Holder furnished in writing to the Company by the Foundation or its counsel on behalf of a participating Holder expressly for use thereinin connection therewith. In The foregoing indemnity agreement shall be in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against the Company, such Indemnitee shall promptly notify the Company, and the Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (x) the Company has agreed in writing to pay such fees and expenses, (y) the Company has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and the Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that the Company shall, in connection with an Underwritten Offeringany one such action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be reimbursed as they are incurred. The Company shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent, but if settled with such written consent, or if there be a final judgment for the plaintiff in any such action, suit or proceeding, the Company shall agrees to indemnify and hold harmless such Indemnitee, to the underwriters thereofextent provided in the preceding paragraph, their officersfrom and against any loss, directors claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each of the participating Holders, severally and agents not jointly, agree to indemnify and each Person hold harmless the Company, its directors, its officers who sign the registration statement, and any person who controls such underwriters (the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) , to the same extent as provided above the foregoing indemnity from the Company to an Indemnitee, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable information relating to the Foundation, any Person who participates as an underwriter such Holder furnished in the offering writing by or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests Holder expressly for use in the Registration Statement relating to such registration statement, prospectus or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectusprepricing prospectus, or any amendment or supplement to thereto. If any of the foregoingaction, suit or (ii) any omission or alleged omission to state therein a material fact required to proceeding shall be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to brought against the Company, any underwriter, each such parties' officers or of its directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)officer, or any agent such controlling person based on the registration statement, prospectus or investment advisor thereofany prepricing prospectus, if the Foundation had provided information curing or any untrue statement amendment or omission supplement thereto, and in time reasonably sufficient to prevent the inclusion respect of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of which indemnity may be sought against any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution Holder pursuant to this Section 11 6(c), such Holder shall have the rights and duties given to the Company by Section 6(b) hereof (provided except that failure to give if the Company shall have assumed the defense thereof such notification Holder shall not affect the obligations of the indemnifying party pursuant be required to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party do so, but may employ separate counsel therein and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume in the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by at the indemnifying party Holder's expense), and the fees Company, its directors, any such officer, and expenses of all other counsel retained any such controlling person shall have the rights and duties given to an Indemnitee by the indemnified parties Section 6(b) hereof. The foregoing indemnity agreement shall be paid by in addition to any liability which the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partyparticipating Holders may otherwise have.
(d) If the indemnification from the indemnifying party provided for in this Section 11 6 is unavailable to an indemnified party hereunder under paragraphs (a) or (c) hereof in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company and indemnified party of the participating Holders in connection with the actions which statements or omissions that resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company on the one hand and indemnified party a participating Holder on the other hand shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by the Company on the one hand or by such indemnifying party or indemnified party, participating Holder on the other hand and the parties' relative intent, knowledge, access to or information and opportunity to correct or prevent such actionstatement or omission.
(e) The Company and the participating Holders agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by a pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 6(d) hereof. The amount paid or payable by a an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to above in Section 6(d) hereof shall be deemed to include, subject to the limitations set forth in Section 11(c) hereofabove, any legal and or other fees and expenses reasonably incurred by such indemnified party in connection with investigating any investigation claim or defending any such action, suit or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d)6, no underwriter participating Holder 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 proceeds to the public were offered to the public such participating Holder exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation participating Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. If .
(f) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or 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 action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification is available or contribution under this Section 11, 6 shall be paid by the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party as such losses, claims, damages, liabilities or any other equitable consideration provided for expenses are incurred. The indemnity and contribution agreements contained in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 6 shall remain operative and in full force and effect irrespective effect, regardless of (i) any investigation made by or on behalf of an indemnified partyIndemnitee, so long as such indemnified party is not guilty the Company, its directors or officers, or any person controlling the Company, and (ii) any termination of acting in a fraudulent, reckless or grossly negligent mannerthis Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Corporate Office Properties Trust)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless In connection with any registration of Registrable Securities pursuant to Section 3.01 or 3.02 hereof, ▇▇▇▇▇▇▇▇ American agrees to indemnify, to the Foundationfullest extent permitted by law, B&W, its affiliates, their directors, officers and directors, shareholders and each Person who controls B&W (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensesfees) incurred caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus prospectus or preliminary Prospectusprospectus contained therein, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectusprospectus, in the light of the circumstances then existingunder which they were made) not misleading; provided, except in each case insofar as the same arise out of however, that ▇▇▇▇▇▇▇▇ American shall not be required to indemnify B&W, its affiliates, their officers, directors, shareholders or are based uponcontrolling Persons for any losses, claims, damages, liabilities or expenses resulting from any such untrue statement or omission if such untrue statement or omission is made in reliance on and in conformity with any information with respect to the Foundation B&W or such other parties furnished to the Company ▇▇▇▇▇▇▇▇ American in writing by the Foundation B&W or its counsel such other parties expressly for use therein. In connection with an Underwritten Offeringunderwritten offering, ▇▇▇▇▇▇▇▇ American will indemnify each Underwriter, the Company shall indemnify the underwriters thereofofficers and directors of such Underwriter, their officers, directors and agents and each Person who controls such underwriters Underwriter (within the meaning of either the Securities Act or the Exchange Act) to the same extent as provided above with respect to the indemnification of B & W; provided, however, that such Underwriter agrees to indemnify ▇▇▇▇▇▇▇▇ American to the same extent as provided below with respect to the indemnification of ▇▇▇▇▇▇▇▇ American by B&W. Notwithstanding the forgoing, with respect to any untrue statement or omission of material fact made in any prospectus or preliminary prospectus, the provisions of this Section 3.08 shall not inure to the benefit of any Investor Party, any other holder of Registrable Securities or any Underwriter from whom the Person asserting any such loss, claim, damages, liabilities or expenses purchased the Registrable Securities to the extent that it shall be established that (i) any such loss, claim, damages, liabilities or expenses of such Person arises primarily from the fact that any Investor Party or any Underwriter sold Registrable Securities to such a Person, (ii) there was not sent or given a copy of the final prospectus (as amended or supplemented) at or prior to the written confirmation of such sale (provided ▇▇▇▇▇▇▇▇ American shall have previously furnished a sufficient number of copies thereof on a timely basis to the Investor Parties, any such holder and each Underwriter, as the case may be, in accordance herewith) and (iii) the final prospectus (as amended or supplemented) would have corrected any such untrue statement or omission of a material fact.
(b) In connection with any Registration Statement, the Investor Parties holding Registrable Securities, as the case may be, will furnish to ▇▇▇▇▇▇▇▇ American in writing such information and affidavits with respect to the Investor Parties holding Registrable Securities, as the case may be, as ▇▇▇▇▇▇▇▇ American reasonably requests, including, but not limited to, information relating to the Investor Parties, as the case may be, for use in connection with any such Registration Statement, prospectus or preliminary prospectus and agrees to indemnify ▇▇▇▇▇▇▇▇ American, its directors, its officers who sign the Registration Statement and each Person, if any, who controls ▇▇▇▇▇▇▇▇ American (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from ▇▇▇▇▇▇▇▇ American to B&W, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable information relating to the Foundation, any Person who participates as an underwriter in the offering B&W or sale such other holders of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the FoundationSecurities, as the Company or any underwriter reasonably requests case may be, furnished to ▇▇▇▇▇▇▇▇ American in writing by B&W expressly for use in the Registration Statement relating to such registration or Statement, the related Prospectus and agrees to indemnify and hold harmless the Companyprospectus, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act 32 amendment or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectussupplement thereto, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementprospectus.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action proceeding (including any governmental investigation) shall be brought against instituted involving any Person in respect of which indemnity may be sought pursuant to Section 3.08(a) or (b), such Person (hereinafter called the indemnified party and it party) shall promptly notify the indemnifying party of the commencement thereof, Person against whom such indemnity may be sought (hereinafter called the indemnifying party shall be entitled to participate therein andparty) in writing and the indemnifying party, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent upon request of the indemnified party, be counsel to the indemnifying 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed retain counsel reasonably satisfactory to such the indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of represent the indemnified party its ability and shall pay the fees and disbursements of such counsel related to finance such defense, or (ii) the actual or potential defendants in, or targets ofproceeding. In any such proceeding, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate retain its own counsel, in which case but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by 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 the indemnified party shall have been advised by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all other counsel retained by such indemnified parties, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. In the case of the retention of any such separate firm for the indemnified parties parties, such firm shall be paid designated in writing by the indemnified parties. No The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall consent have requested an indemnifying party to entry reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), the indemnifying party agrees that it shall be liable for any settlement of any judgment 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 or enter into reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement without 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 consent (which consent, in the case subject matter of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partysuch proceeding.
(d) If the indemnification from the indemnifying party provided for in this Section 11 3.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to thereinin this Section 3.08, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which that resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof3.08(c), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d3.08(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d3.08(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 113.08, the indemnifying parties party shall indemnify each indemnified party to the fullest full extent provided in Section 11(aSections 3.08(a) or and (b) hereof, as the case may be, without regard to the relative fault of such said indemnifying parties party or indemnified party or any other equitable consideration provided for in this Section 11(d3.08(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall will indemnify and hold harmless harmless, to the Foundationfullest extent permitted by law, its officers any Holder and directorsany underwriter for such Holder, and each person, if any, who controls the Holder or such underwriter, from and against any agent or investment adviser thereof against and all losses, damages, claims, damagesliabilities, liabilities joint or several, costs and expenses (including reasonable attorneys' fees and expensesany amounts paid in any settlement effected with Company's consent) incurred by to which the Holder or any such party pursuant to any actual underwriter or threatened actioncontrolling person may become subject under applicable law or otherwise, suitinsofar as such losses, proceeding damages, claims, liabilities (or investigation arising actions or proceedings in respect thereof), costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statementthe registration statement or included in the prospectus, any Prospectus as amended or preliminary Prospectus, or any amendment or supplement to any of the foregoingsupplemented, or (ii) any the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) under which they are made, not misleading, except in each case insofar as and Company will reimburse the same arise out of or are based uponHolder, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents underwriter and each Person who controls such underwriters (within the meaning of Section 15 controlling person of the Securities Act Holder or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a)underwriter, the Company shall not be liable to the Foundationpromptly upon demand, for any Person who participates as an underwriter in the offering or sale of Registrable Securities reasonable legal or any other Personexpenses incurred by them in connection with investigating, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act preparing to defend or Section 20 of the Exchange Act), under this Section 11 for any defending against or appearing as a third party witness in connection with such loss, claim, damage, liability (or liability, action or proceeding proceeding; provided, however, that Company will not be liable in respect thereof) any such case to the extent that any such loss, damage, liability, cost or expense that arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver strict conformity with written information furnished by a copy of a final Prospectus Holder to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any managing underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding ; provided, further, that the foregoing provisions of indemnity agreement contained in this Section 13(b), the Foundation subsection 2.6(a) shall not be liable apply to the Company, any underwriter, each such parties' officers or directors, any other Person who controls amounts paid in settlement of any such party (within the meaning of Section 15 of the Securities Act claim, loss, damage, liability or Section 20 of the Exchange Act), or any agent or investment advisor thereof, action if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with settlement is effected without the consent of the indemnified partyCompany, be counsel to the indemnifying 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.Such indemnity
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall shall, and it hereby agrees to, indemnify and hold harmless each member of the FoundationShareholder Group and its respective directors, officers, employees and controlling Persons, if any, and each underwriter, its officers and partners, directors, officers, employees and controlling Persons, if any, in any agent offering or investment adviser thereof sale of the Registrable Shares, against all any losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, "Claims") to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of the Company as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, or any Prospectus preliminary or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse periodically Parent or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with information furnished to the Company by the Shareholder Group or any underwriter or representative of the foregoingShareholder Group expressly for use therein, or by the Shareholder Group's failure to furnish the Company, upon request, with the information with respect to the Shareholder Group, or any underwriter or representative of the Shareholder Group, or the Shareholder Group's intended method of distribution, that is the subject of the untrue statement or omission or if the Company shall sustain the burden of proving that the Shareholder Group or such underwriter sold securities to the Person alleging such Claims without sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable prospectus (iiexcluding any documents incorporated by reference therein) or of the applicable prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Company had previously furnished copies thereof to the Shareholder Group or such underwriter, and such prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement.
(b) The members of the Shareholder Group shall, and hereby agree, severally and not jointly, to (i) indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Shares, against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company or any underwriter by the Foundation Shareholder Group expressly for use therein, and (ii) reimburse the Company for any legal or its counsel specifically for inclusion therein. Notwithstanding other out-of-pocket expenses reasonably incurred by the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers Company in connection with investigating or directors, any other Person who controls defending any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementClaim.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under Section 5.6(a) or Section 5.6(b) of any written notice of the commencement of any action, suit, action or proceeding or investigation or threat thereof made in writing for which indemnification under Section 5.6(a) or Section 5.6(b) may be requested, such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give shall notify such notification shall not affect the obligations indemnifying party in writing of the indemnifying party pursuant commencement of such action or proceeding; but the omission so to this Section 11 except to the extent notify the indemnifying party shall not relieve it from any liability which it may have been actually prejudiced as a result to any indemnified party in respect of such failure)action or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and in no event shall such omission relieve the indemnifying party from any other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party and it shall notify the an indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party)and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing; provided, if however, that (i) if the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party fails to take charge of reasonable steps necessary to defend diligently the defense of such action or proceeding within a reasonable time 20 days after receiving notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by from such indemnified party that counsel selected pursuant the indemnified party believes it has failed to the immediately preceding sentence do so; (ii) if such indemnified party who is unsatisfactory) a defendant in any action or if proceeding which is also brought against the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party reasonably shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party which are not available to the indemnifying party; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then then, in any such case, the indemnified party shall have the right to employ separate assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction) and the indemnifying party shall be liable for any expenses therefor (including, without limitation, any such reasonable counsel's fees). If the indemnifying party is not entitled to, in which case or elects not to, assume the defense of a claim, it will not be obligated to pay the fees and expenses of more than one counsel for each indemnified party with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest delayed. No indemnifying party shall, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, compromise or consent to entry of any judgment or enter into any settlement without agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 5.6(a) or Section 5.6(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent (which consent, or settlement includes an unconditional release of the indemnified party from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relieflitigation, shall does not be unreasonably withheld) subject the indemnified party to any material injunctive relief or other material equitable remedy and does not include a statement or admission of each indemnifying fault, culpability or a failure to act, by or on behalf of the indemnified party.
(d) If The members of the Shareholder Group and the Company agree that if, for any reason, the indemnification from the indemnifying party provided for in this Section 11 is provisions contemplated by Sections 5.6(a) or 5.6(b) hereof are unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of of, the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with the actions which resulted in respect to such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsoffering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d5.6(d) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d5.6(d), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 5.6(c) hereof) any damages which legal or other fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall indemnify In connection with any registration of Registrable Securities or Underwritten Offering pursuant to Section 2.01, Section 2.02 or Section 2.03, Boron will indemnify, defend and hold harmless the Foundationeach Shareholder, its officers and Affiliates, directors, officers, shareholders and employees and each Person who controls such Shareholders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred Losses caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained or incorporated by reference in any part of any Registration Statement, Statement or any Prospectus or preliminary Prospectus, or including any amendment or supplement to any of thereto, used in connection with the foregoingRegistrable Securities, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existingunder which they were made) not misleading; provided, except in each case insofar as the same arise however, that Boron will not be required to indemnify any Indemnified Person for any such Loss arising out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished sales pursuant to the Company Registration Statement or Prospectus based upon information in the Registration Statement or Prospectus that was represented by Silicon or Silicon Holdings as true and correct in the Foundation or its counsel expressly for use therein. Merger Agreement, and with respect to which ▇▇▇▇▇ would not have been reasonably expected to discover the failure of such information to be true and correct prior to the date of such sales.
(b) In connection with an Underwritten Offeringany Registration Statement or Prospectus, the Company shall indemnify the underwriters thereofShareholders who sell Registrable Securities pursuant to such Registration Statement or Prospectus will severally but not jointly indemnify, their defend and hold harmless Boron, its directors, its officers, directors and agents its employees and each Person Person, if any, who controls such underwriters Boron (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from Boron to the Shareholders, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation information arising out of or based upon information furnished in writing by such Shareholder or on such Shareholder’s behalf (i) any untrue or alleged untrue statement of material fact contained in each case, in its capacity as a Shareholder), in either case expressly for use in any Registration Statement, Statement or any Prospectus or preliminary Prospectus, or including any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementthereto.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 2.11(a) or Section 2.11(b), such action shall be brought against any indemnified party and it shall Person (the “Indemnified Party”) will promptly notify the indemnifying party of Person against whom such indemnity may be sought (the commencement thereof, “Indemnifying Party”) in writing and the indemnifying party Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, thereof with counsel reasonably satisfactory to the Indemnified Party and will pay the fees and disbursements of such indemnified party (who counsel related to such proceeding; provided, however, that the failure or delay to give such notice shall not, not relieve the Indemnifying Party of its obligations pursuant to this Agreement except with the consent of the indemnified party, be counsel to the indemnifying party)extent that it shall be determined by a court of competent jurisdiction that such Indemnifying Party has been prejudiced by such failure or delay. In any such claim, action or proceeding, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and after notice from to retain its own counsel, but the indemnifying party fees and expenses of such counsel will be at the expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party have mutually agreed to the retention of such indemnified party of its election so counsel, (ii) the Indemnifying Party fails to assume the defense thereofof the claim, action or proceeding within fifteen (15) Business Days following receipt of notice from the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel Indemnified Party or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (iiii) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of Indemnified Party and the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the Indemnifying Party are both actual or potential defendants in, or targets of, any such action include and the Indemnified Party has been advised by counsel that representation of both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented parties by the same counsel, could result in a conflict of interest for such counsel would be inappropriate due to actual or materially prejudice potential conflicting interests between them. It is understood that the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counselIndemnifying Party will not, in which case connection with any claim, action or proceeding or related claims, actions or proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one counsel or (1) separate firm of counsel attorneys (plus one in addition to any local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party at any time for all such Indemnified Parties and the that all such reasonable fees and expenses will be reimbursed as they are incurred. In the case of all other counsel retained the retention of any such separate firm for the Indemnified Parties, such firm will be designated in writing by the indemnified parties shall Indemnified Parties. The Indemnifying Party will not be paid by the indemnified parties. No indemnified party shall consent to entry liable for any settlement of any judgment claim, action or enter into any settlement proceeding effected without the its written consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, consent shall not be unreasonably withheld, conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any Loss by reason of such settlement or judgment. No Indemnifying Party will, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any pending or threatened proceeding in respect of which any Indemnified Party is seeking indemnity hereunder, unless such settlement includes (i) an unconditional release of each indemnifying partysuch Indemnified Party from all liability in connection with such proceeding, (ii) no finding or admission of any violation of Law or any violation of the rights of any Person by the Indemnified Party or any of its Affiliates can be made as the result of such action and (iii) the sole relief (if any) provided is monetary damages that are reimbursed in full by the Indemnifying Party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 2.11 from the Indemnifying Party is unavailable to an indemnified party Indemnified Party hereunder or is insufficient in respect of any losses, claims, damages, liabilities or expenses Losses referred to thereinin this Section 2.11, then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall will contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities and expenses Losses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party and indemnified party Indemnified Party in connection with the actions which that resulted in such lossesLosses, claimsas well as any other relevant equitable considerations, damagesor (ii) if the allocation provided by clause (i) is not permitted by applicable Law, liabilities in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of Boron, on the one hand, and expensessuch Shareholder, on the other, in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party Indemnifying Party and indemnified party shall Indemnified Party will be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall will be deemed to include, subject to the limitations set forth in Section 11(c) hereof2.11(c), any reasonable legal and or other out of pocket fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(e) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d2.11(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d2.11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If In no event shall any Shareholder be obligated to provide indemnification is available under this Section 11, or contribution in excess of the indemnifying parties shall indemnify each indemnified party net aggregate proceeds received from the sale of Registrable Securities pursuant to the fullest extent provided in Section 11(a) applicable Registration Statement or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)Prospectus.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Merger Agreement (Banner Corp)
Indemnification; Contribution. (a) The Company shall Issuer of the securities to be registered in the relevant registration shall, and it hereby agrees to, indemnify and hold harmless the FoundationDoCoMo and its respective directors, officers, employees and controlling Persons, if any, and each underwriter, its officers and partners, directors, officers, employees and controlling Persons, if any, in any agent offering or investment adviser thereof sale of the Registrable Securities, against all any losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, "CLAIMS") to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of the Issuer as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, or any Prospectus preliminary or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Issuer shall, and it hereby agrees to, reimburse periodically DoCoMo or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such Claims; PROVIDED, HOWEVER, that the Issuer shall not be liable to any such Person in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, (i) in reliance upon and in conformity with information furnished to the Issuer by DoCoMo or any underwriter or representative of DoCoMo expressly for use therein, or by DoCoMo's failure to furnish the Issuer, upon request, with the information with respect to DoCoMo, or any underwriter or representative of DoCoMo, or DoCoMo's intended method of distribution, that is the subject of the foregoing, untrue statement or omission or (ii) if the Issuer shall sustain the burden of proving that DoCoMo or such underwriter sold securities to the Person alleging such Claims without sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable prospectus (excluding any documents incorporated by reference therein) or of the applicable prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Issuer had previously furnished copies thereof to DoCoMo or such underwriter, and such prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement.
(b) DoCoMo shall, and hereby agrees to (i) indemnify and hold harmless AT&T, with respect to the registration of Current Wireless Tracking Stock, or AT&T Wireless, with respect to the registration of AT&T Wireless Common Stock, its directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Securities, against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement effected with the consent of DoCoMo as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation furnished to AT&T or AT&T Wireless, as the Company case may be, by DoCoMo expressly for use therein, and (ii) periodically reimburse AT&T or AT&T Wireless, as the case may be, for any underwriter legal or other out-of-pocket expenses reasonably incurred by AT&T or AT&T Wireless, as the Foundation case may be, in connection with investigating or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls defending any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementClaim.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under Section 7.6(a) or Section 7.6(b) of any written notice of the commencement of any action, suit, action or proceeding or investigation or threat thereof made in writing for which indemnification under Section 7.6(a) or Section 7.6(b) may be requested, such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give shall notify such notification shall not affect the obligations indemnifying party in writing of the indemnifying party pursuant commencement of such action or proceeding; but the omission so to this Section 11 except to the extent notify the indemnifying party shall not relieve it from any liability which it may have been actually prejudiced as a result to any indemnified party in respect of such failure)action or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and in no event shall such omission relieve the indemnifying party from any other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party and it shall notify the an indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party)and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing; PROVIDED, if HOWEVER, that (i) if the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party fails to take charge of reasonable steps necessary to defend diligently the defense of such action or proceeding within a reasonable time 20 days after receiving notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by from such indemnified party that counsel selected pursuant the indemnified party believes it has failed to the immediately preceding sentence do so; (ii) if such indemnified party who is unsatisfactory) a defendant in any action or if proceeding that is also brought against the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party reasonably shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party that are not available to the indemnifying party; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then then, in any such case, the indemnified party shall have the right to employ separate assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction) and the indemnifying party shall be liable for any expenses therefor (including, without limitation, any such reasonable counsel's fees). If the indemnifying party is not entitled to, in which case or elects not to, assume the defense of a claim, it will not be obligated to pay the fees and expenses of more than one counsel or firm of counsel (plus and one local counsel per jurisdiction) for each indemnified party with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld or regulatory counsel or firm of counsel) selected by a majority in interest delayed. No indemnifying party shall, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, compromise or consent to entry of any judgment or enter into any settlement without agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 7.6(a) or Section 7.6(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent (which consent, or settlement includes an unconditional release of the indemnified party from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relieflitigation, shall does not be unreasonably withheld) subject the indemnified party to any material injunctive relief or other material equitable remedy and does not include a statement or admission of each indemnifying fault, culpability or a failure to act, by or on behalf of the indemnified party.
(d) If DoCoMo, AT&T and AT&T Wireless agree that if, for any reason, the indemnification from the indemnifying party provided for in this Section 11 is provisions contemplated by Sections 7.6(a) or 7.6(b) hereof are unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of of, the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with the actions which resulted in respect to such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsoffering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d7.6(d) were to be determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d7.6(d), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 7.6(c) hereof) any damages which legal or other fees or expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities ActAct or any successor provision thereof) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Investor Agreement (At&t Corp)
Indemnification; Contribution. (a) The Company shall indemnify and agrees to indemnify, hold harmless and defend (i) each Holder covered by any Registration Statement, (ii) each person, if any, who controls (within the Foundationmeaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the persons referred to in this clause (ii) being hereinafter referred to as a "controlling person") and (iii) the respective officers, its officers and directors, partners, employees, representatives and agents of any agent such Holder or investment adviser thereof underwriter or any controlling person (any person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an "indemnified person"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities and expenses liabilities, judgments, fines, amounts paid in settlement, costs or expenses, joint or several, (including reasonable attorneys' fees and expensescollectively, "Claims") incurred by such party pursuant to in investigating, preparing or defending any actual or threatened action, claim, suit, proceeding inquiry, proceeding, investigation or investigation arising appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body of the Commission, whether pending or threatened, whether or not an indemnified party is or may be a party thereto ("Indemnified Damages"), to which any indemnified person may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon upon, or are caused by: (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, Statement (or any amendment or supplement to thereto filed with the Commission) or in any filing made in connection with the qualification of the foregoingoffering under the securities or other "blue sky" laws of any jurisdiction in which Securities are offered ("Blue Sky Filings"), or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, (ii) any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any preliminary Prospectus if used prior to the effective date of such Registration Statement, or contained in any final Prospectus (as amended or preliminary Prospectussupplemented, or if the Company files any amendment thereof or supplement to any of thereto with the foregoing, Commission) or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectusnecessary, in light of the circumstances then existingunder which the statements therein were made, not misleading or (iii) not misleadinga violation by the Company of the Securities Act, but only the Exchange Act or any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law, or any other law applicable to the extent that Company relating to any such registration or qualification (the matters in the foregoing clauses (i) through (iii) being, collectively, "Violations"); except insofar as such Claims or an indemnified person: (x) are caused by any such untrue statement or omission or alleged untrue statement or omission that is made in reliance on based upon and in conformity with information relating to such indemnified person furnished in writing to the Company by or on behalf of any of such indemnified person expressly for use therein; or (y) with respect to any preliminary Prospectus, result from the Foundation furnished fact that such person sold Securities to a person to whom there was not sent or given, at or prior to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions written confirmation of this Section 13(b)such sale, the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 a copy of the Securities Act Prospectus, as amended or Section 20 of the Exchange Act), or any agent or investment advisor thereofsupplemented, if the Foundation had provided information curing any untrue statement Company shall have previously furnished copies thereof to such person in accordance with this Agreement and said Prospectus, as amended or omission in time reasonably sufficient to prevent the inclusion of supplemented, would have corrected such untrue statement or omission omission. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified person and shall survive the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt transfer of such securities by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure)Holder. In case any such action Claim shall be brought or asserted against any of the indemnified party and it persons with respect to which indemnity may be sought against the Company, such indemnified person shall promptly notify the indemnifying party Company and the Company shall assume the defense thereof. Such indemnified person shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the commencement thereofindemnified person unless (i) the employment of such counsel shall have been specifically authorized in writing by the Company, (ii) the indemnifying party Company shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, have failed to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after 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 under this Section 11 for any legal expenses of other employ counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (iiii) the indemnifying party shall not have employed counsel reasonably satisfactory named parties to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of any such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactoryincluding any implied parties) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party indemnified person and such the Company and the indemnified party and such indemnified party person shall have reasonably concluded been advised in writing by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party which, if Company (in which case the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party Company shall not have the right to employ separate counselassume the defense of such action on behalf of the indemnified person), it being understood, however, that the Company shall not, in which case connection with such action or similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one counsel or separate firm of counsel attorneys (plus one in addition to any local or regulatory counsel or firm of counsel) selected at any time for all the indemnified persons, which firm shall be (x) designated by such indemnified persons holding a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, Securities included in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, Registration Statement to which the Claim relates and (y) reasonably satisfactory to the Company. The Company shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided liable for in this Section 11 is unavailable to an indemnified party hereunder in respect any settlement of any lossessuch action or proceeding effected without the Company's prior written consent, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, which consent shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall not be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified partywithheld unreasonably, and the parties' relative intentCompany agrees to indemnify and hold harmless any indemnified person from and against any loss, knowledgeclaim, access to information and opportunity to correct damage, liability, judgment or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay expense by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount settlement of any damages which action effected with the Foundation has otherwise been required to pay by reason written consent 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.the
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless harmless, to the Foundationfullest extent permitted by law, its officers each Holder in any offering or sale of Registrable Common Shares, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Common Shares, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and any agent or investment adviser thereof affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees ’ fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) (collectively, “Losses”) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon upon: (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as the same such statements or omissions arise out of or are based upon, upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to the Foundation such Holder furnished in writing to the Company by the Foundation such Holder or its counsel expressly for use therein. In , (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with an Underwritten Offeringany such registration. Notwithstanding the foregoing provisions of this Section 8(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 8(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either: (i) (A) such 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 Common Shares by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission; or (ii) (A) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (B) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Common Shares by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Common Shares by such indemnified party.
(b) In connection with any Registration Statement filed pursuant to this Agreement, each Holder of Registrable Common Shares to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the underwriters thereoffullest extent permitted by law, their officersthe Company, directors each Person, if any, who participates as an underwriter in any offering and agents sale of Registrable Common Shares and each Person Person, if any, who controls the Company or such underwriters (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof their respective directors, trustees, officers, partners, agents, employees and affiliates, against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) Losses incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation such Holder furnished in writing to the Company or any underwriter by the Foundation such Holder or its counsel specifically for inclusion use therein. Notwithstanding ; provided, however, that no Holder shall be required to indemnify the foregoing provisions of Company or any other indemnified party under this Section 13(b), the Foundation shall not be liable 11(b) with respect to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 amount in excess of the Securities Act or Section 20 amount of the Exchange Act), or any agent or investment advisor thereof, if total net proceeds received by such Holder from sales of the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion Registrable Common Shares of such untrue statement or omission in the Holder under such Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to unless in the reasonable satisfaction judgment of any indemnified party, based on the indemnified party its ability opinion of counsel, a conflict of interest is likely to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both exist between the indemnifying party and such indemnified party and any other of such indemnified party shall have reasonably concluded that there may be legal defenses available parties with respect to it such claim, in which are different from or additional to those available to event the indemnifying party which, if the indemnifying party and such indemnified party were to shall not be represented by the same counsel, could result in a conflict of interest liable for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of (i) more than one counsel or firm for all Holders of counsel (plus one local or regulatory counsel or firm of counsel) Registrable Common Shares who are indemnified parties, selected by the Holders of a majority in interest Majority of the Registrable Common Shares who are indemnified parties (which selection shall be borne by reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. An indemnifying party and who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel retained for all Holders of Registrable Common Shares who are indemnified parties, selected by the Holders of a Majority of the Registrable Common Shares who are indemnified parties (which selection shall be paid reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified partiesparty of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 11. No indemnified party shall consent to entry of any judgment or enter entry into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of to any losses, claims, damages, liabilities or expenses referred to thereinLosses, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expensesLosses, as well as any other relevant equitable considerations; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Common Shares of the Holder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof), any legal and or other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 11(d). If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest full extent provided in Section 11(a) or (b) hereof11(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any indemnifying party may have to any other indemnified party and shall survive any the termination of this Agreement. .
(f) The indemnification provided and contribution required by this Section 11 shall remain in full force and effect irrespective be made by periodic payments of the amount thereof during the course of any investigation made by action, suit, proceeding or on behalf of an indemnified partyinvestigation, so long as such indemnified party is not guilty of acting in a fraudulent, reckless and when invoices are received or grossly negligent mannerLosses are incurred.
Appears in 1 contract
Indemnification; Contribution. (a) The With respect to the Securities, the Company shall agrees to indemnify and hold harmless (i) each Holder and (ii) each Person, if any, who controls (within the Foundationmeaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred to in this clause (ii) being hereinafter referred to as a “controlling person”) and (iii) the respective officers, its officers and directors, partners, employees, representatives and agents of any agent Holder or investment adviser thereof any controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an “Indemnified Holder”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities liabilities, judgments, actions and expenses (including, without limitation, and as incurred, reimbursement of all reasonable costs of investigating, preparing, pursuing, settling, compromising, paying or defending any claim or action, or any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable attorneys' fees and expenses) incurred by such party pursuant expenses of counsel to any actual Indemnified Holder), joint or threatened actionseveral, suit, proceeding or investigation arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Statement or Prospectus or preliminary Prospectus, (or any amendment or supplement to any of the foregoingthereto), or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of such losses, claims, damages, liabilities or expenses are based upon, any such caused by an untrue statement or omission or alleged untrue statement or omission that is made in reliance on upon and in conformity with information with respect relating to any of the Foundation Holders furnished in writing to the Company by any of the Foundation or its counsel Holders expressly for use therein. In connection with an Underwritten Offering.
(b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Company, its directors, officers of the Company shall indemnify who sign the underwriters thereofShelf Registration Statement (or any amendment thereto) or any Prospectus included therein (or any amendment or supplement thereto), their officers, directors and agents and each any Person who controls such underwriters controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the respective officers, directors, partners, employees, representatives and agents of each such Person, to the same extent as provided above the foregoing indemnity from the Company to each of the Indemnified Holders, as incurred, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a)untrue statements or omissions, the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement statements or omission or alleged omission omissions, made in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
Shelf Registration Statement (b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration amendment thereto) or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, included therein (or any amendment or supplement to any of the foregoing, or (iithereto) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation such Holder furnished to the Company by such Holder expressly for use in the Shelf Registration Statement (or any underwriter by the Foundation amendment thereto) or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(bsuch Prospectus (or any amendment or supplement thereto); provided, the Foundation however, that no such Holder shall not be liable to the Company, for any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of Transfer Restricted Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient pursuant to prevent the inclusion of such untrue statement or omission in the Shelf Registration Statement.
(c) Any Person entitled Each indemnified party shall give notice as promptly as reasonably practicable to indemnification each indemnifying party of any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure so to notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder agrees to give prompt written notice the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action; provided, however, that counsel to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, ) also be counsel to the indemnifying indemnified party), and after notice from the . No indemnifying party to such indemnified party of its election so to assume shall, without the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction prior written consent of the indemnified party its ability to finance such defenseparties, settle or (ii) the actual compromise or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available consent to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment with respect to any litigation, or enter into any settlement without investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 4 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (which consent, in the case of i) includes an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) unconditional release of each indemnifying indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) If the indemnification from the indemnifying party provided for in this Section 11 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party hereunder in respect of any losses, liabilities, claims, damages, liabilities damages or expenses referred to therein, then each indemnifying party shall contribute to the indemnifying partyaggregate amount of such losses, in lieu of indemnifying liabilities, claims, damages and expenses incurred by such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesincurred, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company on the one hand and indemnified party the Holders, Underwriters and the Participating Broker-Dealers on the other hand in connection with the actions statements or omissions which resulted in such losses, liabilities, claims, damages, liabilities and damages or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company on the one hand and indemnified party the Holders on the other hand shall be determined by reference to, among other things, whether any action in question, including any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, such indemnifying party by the Company or indemnified party, the Holders. The Company and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto Holders agree that it would not be just and equitable if contribution pursuant to this Section 11(d) 4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d)4. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 11(d)4, no underwriter Holder shall be required to contribute any amount in excess of the amount by which the total price at which net proceeds received by such Holder from the Registrable sale of the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and with respect to the Foundation shall not be required to contribute any amount in excess Securities from the sale of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionSecurities. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions For purposes of this Section 11 4, each Person, if any, who controls a Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be in addition have the same rights to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long contribution as such indemnified party is not guilty Holder and each director of acting in a fraudulentthe Company, reckless and each Person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or grossly negligent mannerSection 20 of the 1934 Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Suburban Propane Partners Lp)
Indemnification; Contribution. (a) The In the case of each offering of Registrable Shares made pursuant to this Article III, the Company shall shall, to the extent permitted by applicable law, indemnify and hold harmless the Foundation, Shareholder and its directors and officers and directorseach Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Shareholder from and against any agent or investment adviser thereof against and all losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' and documented fees and expensesof counsel) incurred by (collectively, "Claims") to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual or threatened action, suit, proceeding or investigation arising amounts paid in settlement reached in accordance with the requirements for consent as provided herein) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, or any preliminary or final Prospectus or preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement to any of the foregoingthereto, or any document incorporated by reference therein, (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a any preliminary or final Prospectus or a preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement), in the light of the circumstances then existingunder which they were made) not misleadingmisleading or (iii) any violation by the Company of the Securities Act, except the Exchange Act or any state securities law in each connection with such offering; provided, however, that the Company shall not be liable to any such indemnified party in any such case insofar as to the same extent that any such Claims arise out of or are based uponupon an untrue statement or alleged untrue statement contained in or omission or alleged omission from such Registration Statement, or preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by the Shareholder or any Representative of the Shareholder expressly for use therein; provided, further, that that the foregoing indemnity agreement, with respect to any Prospectus or Free Writing Prospectus, shall not inure to the benefit of any such indemnified party if the Person asserting any Claims against such indemnified party purchased Shareholder Shares and (x) prior to the time of sale of the Shareholder Shares to such Person (the "Time of Sale"), the Company shall have notified the Shareholder that the Prospectus or Free Writing Prospectus (as it existed prior to the Time of Sale) contains an untrue statement of material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (y) such untrue statement or omission made of a material fact was corrected in reliance on a Prospectus or Free Writing Prospectus, and in conformity with information with respect such corrected Prospectus or Free Writing Prospectus was provided to the Foundation furnished Shareholder in advance of the Time of Sale, and (z) such corrected preliminary Prospectus or Free Writing Prospectus was not conveyed to such Person at or prior to the Company by the Foundation or its counsel expressly for use thereinTime of Sale. In connection with an Underwritten Offeringany underwritten offering of Registrable Shares made pursuant to this Article III, the Company shall indemnify and hold harmless each underwriter, the underwriters thereof, their officers, officers and directors and agents of such underwriter and each Person who Person, if any, that controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter to substantially the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding Shareholder by the foregoing provisions Company.
(b) In the case of each offering of Registrable Shares made pursuant to this Section 11(a)Article III, the Company shall not be liable Shareholder shall, to the Foundationextent permitted by applicable law, any Person who participates as an underwriter in indemnify and hold harmless the offering or sale of Registrable Securities or any other Company and its directors and officers and each Person, if any, who that controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)) the Company from and against any Claims to which each such indemnified party may become subject, under this Section 11 insofar as such Claims (including any amounts paid in settlement reached in accordance with the requirements for any such loss, claim, damage, liability (or action or proceeding in respect thereofconsent as provided herein) or expense that arises arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, or any preliminary or final Prospectus or preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment or supplement to any of the foregoingthereto, or (ii) any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a any preliminary or final Prospectus or a preliminary Prospectus(including any Free Writing Prospectus incorporated into such Registration Statement), in the light of the circumstances then existingunder which they were made) not misleading, but in each case only to the extent that any such untrue statement or alleged untrue statement or omission is or alleged omission was made in reliance on upon and in conformity with information with respect to the Foundation furnished in writing to the Company by the Shareholder or any underwriter by Representative of the Foundation or its counsel specifically Shareholder expressly for inclusion use therein. Notwithstanding The liability of the Shareholder under the foregoing provisions of this Section 13(b)3.8(b) shall be limited to an amount equal to the dollar amount of the net proceeds received by such Selling Holder from Shareholder Shares sold by such Selling Holder pursuant to such Registration Statement or Prospectus. In connection with any underwritten offering of Registrable Shares made pursuant to this Article III, the Foundation Company shall not be liable to the Company, any indemnify and hold harmless each underwriter, the officers and directors of such underwriter and each such parties' officers or directorsPerson, any other Person who if any, that controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter and any other selling securityholder in such offering (and, in the case of each such other selling securityholder, such selling securityholder's officers and directors and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such selling securityholder), or any agent or investment advisor thereof, if to substantially the Foundation had same extent as provided information curing any untrue statement or omission in time reasonably sufficient above with respect to prevent the inclusion indemnification of such untrue statement or omission in the Registration StatementCompany by the Shareholder.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of If, for any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofreason, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this indemnification provisions contemplated by Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory3.8(a) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (iiSection 3.8(b) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to thereintherein other than by the terms of this Section 3.8, then the indemnifying party, in lieu of indemnifying such indemnified party, each Indemnifying Party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party, on the one hand, and the indemnified party in connection party, on the other hand, with the actions which respect to statements or omissions that that resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsClaims. The relative fault of such indemnifying party Indemnifying Party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party Indemnifying Party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 3.8(c) is not permitted by applicable law, then each Indemnifying Party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the Indemnifying Party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d3.8(c) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d3.8(c), no underwriter . The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be required deemed to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed include (subject to the public were offered to the public exceeds the amount of limitations set forth in Section 3.9) any damages which reasonable and documented legal or other fees or out-of-pocket expenses reasonably incurred by such underwriter has otherwise been required to pay by reason of indemnified party in connection with investigating or defending any such untrue action, proceeding or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionclaim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11Notwithstanding the foregoing, the indemnifying parties Shareholder shall indemnify each indemnified party not be liable to contribute any amount in excess of the fullest extent provided in Section 11(a) dollar amount of the net proceeds received by the Shareholder from Shareholder Shares sold by the Shareholder pursuant to such Registration Statement or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)Prospectus.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Combination Agreement (CF Industries Holdings, Inc.)
Indemnification; Contribution. (a) The Company shall indemnify In connection with any registration of Registrable Securities or Underwritten Offering pursuant to Section 2.01, Section 2.02 or Section 2.03, Boron will indemnify, defend and hold harmless the Foundationeach Shareholder, its officers and Affiliates, directors, officers, shareholders and employees and each Person who controls such Shareholders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred Losses caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained or incorporated by reference in any part of any Registration Statement, Statement or any Prospectus or preliminary Prospectus, or including any amendment or supplement to any of thereto, used in connection with the foregoingRegistrable Securities, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existingunder which they were made) not misleading; provided, except in each case insofar as the same arise however, that Boron will not be required to indemnify any Indemnified Person for any such Loss arising out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished sales pursuant to the Company Registration Statement or Prospectus based upon information in the Registration Statement or Prospectus that was represented by Silicon or Silicon Holdings as true and correct in the Foundation or its counsel expressly for use therein. Merger Agreement, and with respect to which Boron would not have been reasonably expected to discover the failure of such information to be true and correct prior to the date of such sales.
(b) In connection with an Underwritten Offeringany Registration Statement or Prospectus, the Company shall indemnify the underwriters thereofShareholders who sell Registrable Securities pursuant to such Registration Statement or Prospectus will severally but not jointly indemnify, their defend and hold harmless Boron, its directors, its officers, directors and agents its employees and each Person Person, if any, who controls such underwriters Boron (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from Boron to the Shareholders, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation information arising out of or based upon information furnished in writing by such Shareholder or on such Shareholder’s behalf (i) any untrue or alleged untrue statement of material fact contained in each case, in its capacity as a Shareholder), in either case expressly for use in any Registration Statement, Statement or any Prospectus or preliminary Prospectus, or including any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementthereto.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 2.11(a) or Section 2.11(b), such action shall be brought against any indemnified party and it shall Person (the “Indemnified Party”) will promptly notify the indemnifying party of Person against whom such indemnity may be sought (the commencement thereof, “Indemnifying Party”) in writing and the indemnifying party Indemnifying Party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, thereof with counsel reasonably satisfactory to the Indemnified Party and will pay the fees and disbursements of such indemnified party (who counsel related to such proceeding; provided, however, that the failure or delay to give such notice shall not, not relieve the Indemnifying Party of its obligations pursuant to this Agreement except with the consent of the indemnified party, be counsel to the indemnifying party)extent that it shall be determined by a court of competent jurisdiction that such Indemnifying Party has been prejudiced by such failure or delay. In any such claim, action or proceeding, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and after notice from to retain its own counsel, but the indemnifying party fees and expenses of such counsel will be at the expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party have mutually agreed to the retention of such indemnified party of its election so counsel, (ii) the Indemnifying Party fails to assume the defense thereofof the claim, action or proceeding within fifteen (15) Business Days following receipt of notice from the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel Indemnified Party or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (iiii) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of Indemnified Party and the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the Indemnifying Party are both actual or potential defendants in, or targets of, any such action include and the Indemnified Party has been advised by counsel that representation of both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented parties by the same counsel, could result in a conflict of interest for such counsel would be inappropriate due to actual or materially prejudice potential conflicting interests between them. It is understood that the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counselIndemnifying Party will not, in which case connection with any claim, action or proceeding or related claims, actions or proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one counsel or (1) separate firm of counsel attorneys (plus one in addition to any local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party at any time for all such Indemnified Parties and the that all such reasonable fees and expenses will be reimbursed as they are incurred. In the case of all other counsel retained the retention of any such separate firm for the Indemnified Parties, such firm will be designated in writing by the indemnified parties shall Indemnified Parties. The Indemnifying Party will not be paid by the indemnified parties. No indemnified party shall consent to entry liable for any settlement of any judgment claim, action or enter into any settlement proceeding effected without the its written consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, consent shall not be unreasonably withheld, conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any Loss by reason of such settlement or judgment. No Indemnifying Party will, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any pending or threatened proceeding in respect of which any Indemnified Party is seeking indemnity hereunder, unless such settlement includes (i) an unconditional release of each indemnifying partysuch Indemnified Party from all liability in connection with such proceeding, (ii) no finding or admission of any violation of Law or any violation of the rights of any Person by the Indemnified Party or any of its Affiliates can be made as the result of such action and (iii) the sole relief (if any) provided is monetary damages that are reimbursed in full by the Indemnifying Party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 Section 2.11 from the Indemnifying Party is unavailable to an indemnified party Indemnified Party hereunder or is insufficient in respect of any losses, claims, damages, liabilities or expenses Losses referred to thereinin this Section 2.11, then the indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall will contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities and expenses Losses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party and indemnified party Indemnified Party in connection with the actions which that resulted in such lossesLosses, claimsas well as any other relevant equitable considerations, damagesor (ii) if the allocation provided by clause (i) is not permitted by applicable Law, liabilities in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of Boron, on the one hand, and expensessuch Shareholder, on the other, in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party Indemnifying Party and indemnified party shall Indemnified Party will be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partyIndemnified Party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall will be deemed to include, subject to the limitations set forth in Section 11(c) hereofSection 2.11(c), any reasonable legal and or other out of pocket fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. .
(e) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(dSection 2.11(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this Section 11(dSection 2.11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If In no event shall any Shareholder be obligated to provide indemnification is available under this Section 11, or contribution in excess of the indemnifying parties shall indemnify each indemnified party net aggregate proceeds received from the sale of Registrable Securities pursuant to the fullest extent provided in Section 11(a) applicable Registration Statement or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)Prospectus.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Merger Agreement (Banner Corp)
Indemnification; Contribution. (a) The Company shall indemnify and hold harmless harmless, to the Foundationfullest extent permitted by law, its officers each Holder in any offering or sale of Registrable Securities, each Person, if any, who participates as an underwriter in any offering and sale of Registrable Securities, and each Person, if any, who controls such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and any agent or investment adviser thereof affiliates against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees fees, disbursements and expenses, as incurred, and any amounts paid in any settlement effected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon upon: (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as the same such statements or omissions arise out of or are based upon, upon (A) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to the Foundation such Holder furnished in writing to the Company by the Foundation such Holder or its counsel expressly for use therein. In , (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with an Underwritten Offeringany such registration. Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such 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 by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party.
(b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless, to the underwriters thereoffullest extent permitted by law, their officersthe Company, directors each Person, if any, who participates as an underwriter in any offering and agents sale of Registrable Securities and each Person Person, if any, who controls the Company or such underwriters (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof their respective directors, trustees, officers, partners, agents, employees and affiliates, against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) Losses incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, any Prospectus or preliminary Prospectus, Prospectus or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation such Holder furnished in writing to the Company or any underwriter by the Foundation such Holder or its counsel specifically for inclusion use therein. Notwithstanding ; provided, however, that no Holder shall be required to indemnify the foregoing provisions of Company or any other indemnified party under this Section 13(b), the Foundation shall not be liable 12(b) with respect to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 amount in excess of the Securities Act or Section 20 amount of the Exchange Act), or any agent or investment advisor thereof, if total net proceeds received by such Holder from sales of the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion Registrable Securities of such untrue statement or omission in the Holder under such Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.this
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall shall, and it hereby agrees to, indemnify and hold harmless the Foundationeach Holder and its partners, its officers and members, directors, officers, employees and controlling Persons, if any, in any agent offering or investment adviser thereof sale of the Registrable Shares pursuant to a registration statement hereunder, against all any losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable attorneys' fees and expensesof counsel) incurred by (collectively, “Claims”) to which each such indemnified party pursuant to may become subject, insofar as such Claims (including any actual amounts paid in settlement effected with the consent of the Company as provided herein), or threatened actionactions or proceedings in respect thereof, suit, proceeding or investigation arising arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in any Registration Statementregistration statement, or any Prospectus preliminary or preliminary Prospectusfinal prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, however, that the Company shall not be liable to any such Holder in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Holder with respect to such Holder expressly for use therein, or by such Holder’s failure to furnish the Company, upon request, with the information with respect to the Holder, or such Holder’s intended method of distribution, that is the subject of the foregoinguntrue statement or omission, or if the Holder sold securities to the Person alleging such Claims without sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable prospectus (iiexcluding any documents incorporated by reference therein) or of the applicable prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Company had previously furnished copies thereof to the Holders, and such prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement.
(b) Each Holder, severally and not jointly, shall, and hereby agrees to, indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, in any offering or sale of Registrable Shares pursuant to a registration statement hereunder, against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect only to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls extent that such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on upon and in conformity with written information with respect to the Foundation furnished to the Company or by such Holder with respect to such Holder; provided, that in no event shall any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of indemnity under this Section 13(b), 2.05 exceed the Foundation shall not be liable to net proceeds from the Company, any underwriter, each offering received by such parties' officers Holder unless such liability arises out of or directors, any other Person who controls any is based on willful misconduct by such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementHolder.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under Section 2.05(a) or Section 2.05(b) of any written notice of the commencement of any action, suit, action or proceeding or investigation or threat thereof made in writing for which indemnification under Section 2.05(a) or Section 2.05(b) may be requested, such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give shall notify such notification shall not affect the obligations indemnifying party in writing of the indemnifying party pursuant commencement of such action or proceeding; but the omission so to this Section 11 except to the extent notify the indemnifying party shall not relieve it from any liability which it may have been actually prejudiced as a result to any indemnified party in respect of such failure)action or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and in no event shall such omission relieve the indemnifying party from any other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party and it shall notify the an indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party)and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses, in each case expenses subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing; provided, if however, that (i) if the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party fails to take charge of reasonable steps necessary to defend diligently the defense of such action or proceeding within a reasonable time 20 days after receiving notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by from such indemnified party that counsel selected pursuant the indemnified party believes it has failed to the immediately preceding sentence do so; (ii) if such indemnified party who is unsatisfactory) a defendant in any action or if proceeding which is also brought against the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party reasonably shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party which are not available to the indemnifying party; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then then, in any such case, the indemnified party shall have the right to employ separate assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction plus any necessary local counsel as determined by the indemnified party) and the indemnifying party shall be liable for any expenses therefor (including, without limitation, any such reasonable counsel’s fees). If the indemnifying party is not entitled to, in which case or elects not to, assume the defense of a claim, it will not be obligated to pay the fees and expenses of more than one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest for each indemnified party with respect to such claim. The indemnifying party will not be subject to any liability for any settlement made without its consent. No indemnifying party shall, without the prior written consent of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall party, compromise or consent to entry of any judgment or enter into any settlement without agreement with respect to any action or proceeding in respect of which indemnification is sought under Section 2.05(a) or Section 2.05(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent (which consent, or settlement is solely for monetary damages and includes an unconditional release of the indemnified party from all liability in the case respect of an action, suit, such claim or proceeding exclusively seeking monetary relieflitigation, shall and does not be unreasonably withheld) include a statement or admission of each indemnifying fault, culpability or a failure to act, by or on behalf of the indemnified party.
(d) If The Holders and the Company agree that if, for any reason, the indemnification from the indemnifying party provided for in this provisions contemplated by Section 11 is 2.05(a) or 2.05(b) hereof are unavailable to or are insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to therein, then the each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and the indemnified party in connection party, on the other hand, with respect to the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerationsapplicable offering of securities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or by such indemnified party, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionstatement or omission. The If, however, the allocation in the first sentence of this Section 2.05(d) is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any investigation or proceedingother relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 11(d2.05(d) were to be determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions preceding sentences of this Section 11(d2.05(d). The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be deemed to include (subject to the limitations set forth in Section 2.05(c) hereof) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action, proceeding or claim; provided, that in no event shall any contribution under this Section 2.05(d), no underwriter shall be required to contribute when combined with any amount in excess amounts payable or paid under 2.05(b), exceed the net proceeds from the offering received by such Holder unless such liability arises out of the amount or is based on willful misconduct by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionHolder. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company shall agrees to ------------------------------- indemnify and hold harmless each Designated Holder and each Person who controls (within the Foundation, its officers meaning of Section 15 of the Securities Act) such Designated Holder from and directors, against any and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expensescosts of investigation) incurred by such party pursuant to any actual or threatened action(collectively, suit"Liabilities"), proceeding or investigation ----------- arising out of or based upon (i) any untrue untrue, or alleged untrue allegedly untrue, statement of a material fact contained in any Registration Statement, any Prospectus prospectus or preliminary Prospectus, prospectus or notification or offering circular (as amended or supplemented if the Company shall have furnished any amendment amendments or supplement to any supplements thereto) or arising out of the foregoing, or (ii) based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of not misleading under the circumstances then existing) not misleadingsuch statements were made, except in each case insofar as the same arise such Liability arises out of or are is based upon, upon any such untrue statement or alleged untrue statement or omission made or alleged omission contained in such Registration Statement, preliminary prospectus or final prospectus in reliance on and upon information concerning such Designated Holder furnished in conformity with information with respect writing to the Foundation Company by such Designated Holder expressly for use therein, including, without limitation, the information furnished to the Company by pursuant to Section 8(b) or failure of a Designated Holder to deliver a copy of the Foundation registration statement or its counsel expressly for use therein. In connection with an Underwritten Offering, prospectus or any amendments or supplements thereto after the Company has furnished such Designated Holder with copies of the same. The Company shall indemnify also provide customary indemnities to any underwriters of the underwriters thereofRegistrable Securities, their officers, directors and agents employees and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale Designated Holders of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this AgreementSecurities.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Registration Rights Agreement (Outboard Marine Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(a) The To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Holder, each Person, if any, who controls such Holder within the Foundation, its officers and directorsmeaning of the Securities Act, and each officer, director, partner and employee of such Holder and such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' attorney’s fees and expenses) disbursements and reasonable expenses of investigation (collectively, “Losses”), incurred by such party Person pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon any of the following statements or omissions (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, including any Registration Statement, any preliminary Prospectus or preliminary Prospectusfinal Prospectus contained therein, or any amendment amendments or supplement to any of the foregoing, or supplements thereto; or
(ii) any the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectustherein, in light of the circumstances then existing) under which they were made, not misleading; provided, except however, that the indemnification required by this Section 5(a) shall not apply to amounts paid in each settlement of any such Loss if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case insofar as for any such Loss to the same arise extent that it arises out of or are is based upon, any such untrue statement or omission made upon a Violation which occurs in reliance on upon and in conformity with information with respect to the Foundation furnished in writing to the Company by the Foundation or its counsel on behalf of a Holder or any underwriter expressly for use therein. In in connection with an Underwritten Offeringsuch registration; and provided, the Company further, that any indemnification required by this Section 5(a) shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) not apply to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls that any such underwriter (within the meaning of Section 15 of the Securities Act Loss is based on or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, included in the or omitted from any preliminary Prospectus prospectus if the Foundationfinal prospectus shall correct such untrue statement or alleged untrue statement, or other Person on behalf of the Foundationsuch omission or alleged omission, failed to send or deliver and a copy of a the final Prospectus prospectus has not been sent or given by the Holder or any underwriter to the Person asserting the claim alleging damage at or prior to the written confirmation of sale to such Person; and provided, further, that this indemnity shall not apply to the sale extent that any such Loss is based on an offer or Transfer of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and during any period which the Company had previously has notified the Holder that such offers and timely furnished sufficient copies thereof to Transfers must cease under the Foundation in accordance with this Agreement, including under Section 2.3, Section 2.4(b) or Section 2.4(e).
(b) In connection with any registration of Registrable Securities pursuant to this AgreementTo the extent permitted by applicable law, the Foundation Holders (severally and not jointly) shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwritereach of the directors of the Company, each such party's of the officers and directors and of the Company who shall have signed the Resale Registration Statement, each Person Person, if any, who controls each such party (the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and each officer, director, partner, and employee of such controlling Person, against any agent or investment adviser thereof against and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) Losses incurred by each such party Person pursuant to any actual or threatened action, suit, proceeding or investigation arising investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusViolation, in light of the circumstances then existing) not misleading, but only each case to the extent that such Violation arises out of or is based upon information furnished in writing by or on behalf of a Holder expressly for use in connection with such registration, or upon the Holder’s failure to properly and timely deliver an “official” Prospectus, or upon the Holder’s use of a written or oral prospectus other than the “official” Prospectus; provided, however, that any indemnification required by this Section 5(b) shall not apply to amounts paid in settlement of any such untrue statement or omission Loss if such settlement is made in reliance on and in conformity with information with respect to effected without the Foundation furnished to consent of the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation Holders (which consent shall not be liable to unreasonably withheld, conditioned or delayed) and in no event shall the Company, amount of any underwriter, each such parties' officers or directors, any other Person who controls any such party (within indemnity obligation under this Section 5(b) exceed the meaning of Section 15 of gross proceeds from the Securities Act or Section 20 of applicable offering received by the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration StatementHolders.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 5 of any written notice of the commencement of any action, suit, proceeding or proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim indemnification or contribution pursuant to under this Section 11 (provided that failure 5, such indemnified party shall deliver to give such notification shall not affect the obligations of the indemnifying party pursuant a written notice thereof and the indemnifying party shall have the right to this Section 11 except participate in, and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishso desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereof, thereof with counsel reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, and after notice from the if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses 5 to the extent of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) prejudice but shall not relieve the indemnifying party shall not of any liability that it may have employed counsel reasonably satisfactory to such any indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected otherwise than pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then this Section 5. Any such indemnified party shall have the right to employ separate counselcounsel in any such action, claim or proceeding and to participate in which case the defense thereof, but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party and could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims 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 (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and any other counsel retained by the of such indemnified parties shall be paid by the indemnified parties. No indemnified party shall consent with respect to entry of any judgment or enter into any settlement without the consent (which consent, in the case of an such action, suit, claim or proceeding exclusively seeking monetary reliefproceeding, in which event the indemnifying party shall not be unreasonably withheld) obligated to pay the reasonable fees and expenses of each indemnifying partysuch additional counsel or counsels).
(d) If the indemnification required by this Section 5 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Losses referred to therein, then in this Section 5:
(i) the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party parties in connection with the actions which that resulted in such losses, claims, damages, liabilities and expensesLosses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, Violation has been made committed by, or relates to information supplied by, such indemnifying party or indemnified partyparties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such actionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(cSections 5(a), 5(b) hereofand 5(c), any legal and or other fees and or expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The ;
(ii) the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d5(d) were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 11(d5(d)(i). Notwithstanding the provisions of this Section 11(d), 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 were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions obligations of the Company and the Holders under this Section 11 shall be in addition to any liability which any party may have to any other party and 5 shall survive the completion of any termination offering of Registrable Securities pursuant to the registration statement under this Agreement. The indemnification provided by this Section 11 shall remain in full force , and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent mannerotherwise.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Section 2:
(a) The To the extent permitted by law, the Company shall will, and it hereby does, indemnify and hold harmless the Foundation, its officers and directorseach selling Holder, and the partners, members, officers, agents, Affiliates, employees, trustees, stockholders and directors of each such Holder; legal counsel and accountants for each such Holder; any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses underwriter (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (as defined in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existingSecurities Act) not misleading, except in for each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents Holder; and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such Holder or underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for against any Damages, and the Company will pay to each such lossHolder, claimunderwriter, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundationcontrolling Person, or other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 2.9(a) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable for any Damages to the extent that they arise out of or are based upon statements or omissions made in reliance upon and in conformity with written information regarding the Holder or its plan of distribution furnished by or on behalf of any such Holder, underwriter, controlling Person, or other aforementioned Person expressly for use in the FoundationDisclosure Package, failed to send the Prospectus, any Free Writing Prospectus, or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation any registration statement of the sale of the Registrable Securities to such Person and such statement Company, including any preliminary Prospectus or omission was corrected in such final Final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementcontained therein or any amendments or supplements thereto.
(b) In connection with any registration of Registrable Securities pursuant to this AgreementTo the extent permitted by law, the Foundation shall furnish to the Company each selling Holder, severally and any underwriter in writing such informationnot jointly, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to will indemnify and hold harmless the Company, any underwriterand each of its directors, each such party's of its officers and directors and who has signed the registration statement, each Person (if any), who controls each such party (the Company within the meaning of Section 15 of the Securities Act or Section 20 of Act, legal counsel and accountants for the Exchange Company, any underwriter (as defined in the Securities Act), any other Holder selling securities in such registration statement, and any agent controlling Person of any such underwriter or investment adviser thereof other Holder, against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary ProspectusDamages, in light of the circumstances then existing) not misleading, but each case only to the extent that any such untrue statement Damages arise out of or omission is are based upon statements or omissions made in reliance on upon and in conformity with written information with respect to regarding the Foundation Holder or its plan of distribution furnished by or on behalf of such selling Holder expressly for use in the Disclosure Package, the Prospectus, any Free Writing Prospectus, or any registration statement of the Company, including any preliminary Prospectus or Final Prospectus contained therein or any amendments or supplements thereto; and each such selling Holder will pay to the Company and each other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any underwriter by claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of indemnity agreement contained in this Section 13(b)2.9(b) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Holder, the Foundation which consent shall not be liable to unreasonably withheld; and provided, further, that in no event shall the Company, aggregate amounts payable by any underwriter, each Holder by way of indemnity or contribution under this Section 2.9(b) and Section 2.9(d) exceed the proceeds from the offering received by such parties' officers or directors, Holder (net of any other Person who controls any Selling Expenses paid by such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActHolder), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party Promptly after the receipt by such an indemnified party under this Section 2.9 of any written notice of the commencement of any action, suit, threat or proceeding or investigation or threat thereof made in writing (including any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party may will, if a claim indemnification in respect thereof is made or contribution pursuant intended to be made against any indemnifying party under this Section 11 (provided that failure to 2.9, give such notification shall not affect the obligations of the indemnifying party pursuant written notice of the commencement thereof. The indemnifying party shall have the right to this Section 11 except participate in such action and, to the extent the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereofso desires, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notifiedto which notice has been given, and to assume the defense thereof, thereof with counsel reasonably mutually satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying 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 under this Section 11 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigationparties. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such Each indemnified party shall have the right to employ separate counselcounsel in any such action and participate in the defense thereof, in which case but the reasonable and documented out-of-pocket fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified party unless (i) the indemnifying party agrees to pay the same, (ii) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party within a reasonable period of time or (iii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel that either (x) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct, as determined in the reasonable judgment of any party or (y) there may be one or more legal defenses available to the indemnified party which are different from or in addition to those available to the indemnifying party, it being understood, however that the indemnifying party shall not be liable for fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for each group of similar indemnified parties (e.g., the Holders, as contrasted with executive officers and directors of the Company). In any of such cases, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party and all such fees and expenses shall be reimbursed as incurred. In the event that the indemnified parties retain separate counsel, such counsel shall, to the extent reasonable, cooperate with the indemnifying party’s counsel in order to control overall costs. The failure to give notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 2.9, except to the extent that such failure results in the loss of substantive legal rights. No indemnified indemnifying party shall consent to entry of any judgment or enter into be liable for any settlement entered into without the consent (which its written consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, which consent shall not be unreasonably withheld) . No indemnifying party shall, without the consent of each indemnifying indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification from the indemnifying party provided To provide for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution to joint liability under the Securities Act in any case in which either (i) any party otherwise entitled to indemnification hereunder makes a claim for indemnification pursuant to this Section 11(d) were 2.9 but it is judicially determined (by pro rata allocation the entry of a final judgment or decree by any other method a court of allocation which does not take account competent jurisdiction and the expiration of time to appeal or the denial of the equitable considerations referred to above last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Section 11(d). Notwithstanding the provisions of this Section 11(d), no underwriter shall be required to contribute any amount 2.9 provides for indemnification in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.case,
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall agrees to indemnify and hold harmless each holder and each "person," if any, that controls such holder within the Foundationmeaning of Section 15 of the Securities Act for, its officers from and directorsagainst any and all loss, liability, claim, damage and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses expense (including reasonable attorneys' fees and expensesfees) incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) the extent resulting from any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or preliminary Prospectus, registration statement pursuant to which Registrable Securities were registered under the Securities Act (or any amendment or supplement to any of the foregoingthereto), including all documents incorporated therein by reference, or (ii) any from the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein (therein, in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) under which they were made, not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement misstatement or omission or alleged misstatement or omission is made therein in reliance on upon and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel such holder in writing expressly for use thereinin a registration statement (or any amendment thereto) or any prospectus (or any amendment or supplement thereto) relating to the Registrable Securities. In connection with an Underwritten OfferingAs used in this Section 5.6(a), the Company term "holder" shall indemnify the underwriters thereof, their include its officers, directors and agents agents.
(b) Each holder agrees to indemnify and hold harmless the Company, its directors and officers and each Person "person," if any, who controls such underwriters (the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from the Company to such holder, but only with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to the Foundation, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Foundation, or other Person on behalf of the Foundation, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely information furnished sufficient copies thereof to the Foundation in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing by such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company holder or any underwriter reasonably requests on such holder's behalf expressly for use in the Registration Statement any registration statement (or any amendment thereto) or any prospectus (or any amendment or supplement thereto) relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus or preliminary ProspectusRegistrable Securities, or any amendment or supplement thereto; provided that the obligations or any holder to any of indemnify the foregoing, or (ii) any omission or alleged omission Company and the other persons referred to state therein a material fact required to above shall be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only limited to the extent that any proceeds received by such untrue statement or omission is made in reliance on and in conformity with information with respect to holder from the Foundation furnished to the Company or any underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Foundation shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion sale of such untrue statement or omission in the Registration StatementRegistrable Securities pursuant to such registration statement.
(c) Any Person If any action or proceeding (including any governmental investigation) shall be brought or asserted against any person entitled to indemnification hereunder agrees to hereunder, the indemnified party shall give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any actionparty, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent and the indemnifying party shall have been actually prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with including the employment of counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to shall assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal payment of all expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigationsuch defense. Notwithstanding the foregoing, if (i) the indemnifying party shall not have employed counsel reasonably satisfactory to such The indemnified party to take charge or any controlling person of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counselcounsel in any such action and to participate in the defense thereof, in which case but the fees and expenses of one such counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest shall be at the expense of the indemnified party or such controlling person unless (i) the indemnifying party shall have agreed to pay such fees and expenses; or (ii) the indemnifying party shall have failed to assume the defense for such action 16 or proceeding and to employ counsel reasonably satisfactory to the indemnified party in any such action or proceeding; or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the indemnified party or such controlling person and the indemnifying party, and such indemnified party or such controlling person shall be borne have been advised by counsel that counsel employed by the indemnifying party would, under applicable professional standards, have a conflict in representing both the indemnifying party and the indemnified party or such controlling person, in which case, if such indemnified person or such controlling person notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding of separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, and shall not be liable for the reasonable fees and expenses of all other counsel retained by the more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified parties party and such controlling persons, which firm shall be paid by designated, if the holders (or their controlling persons) are the indemnified parties, in writing by the holders of a majority of the outstanding Registrable Securities owned by holders who are then entitled to such indemnity in connection with such action or proceeding and if the Company is the indemnified party, by the Company. No indemnified party shall consent to entry be liable for any settlement of any judgment such action or enter into any settlement proceeding effected without the its written consent (which consent, in the case of an action, suit, claim or proceeding exclusively seeking monetary relief, consent shall not be unreasonably withheld), but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party agrees to indemnify and hold harmless such indemnified party and such controlling person from and against any loss or liability (to the extent stated above) by reason of each indemnifying partysuch settlement or judgment.
(di) If the indemnification from the indemnifying party provided for in this Section 11 5.6 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to thereinexpenses, then the each such indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying indemnified party and indemnified the indemnifying party in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities and or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying the indemnified party and indemnified the indemnifying party shall be determined by reference to, among other things, whether any action in question, including any the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, has been made by, or fact relates to information supplied by, by such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid statement or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(comission.
(ii) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d5.6(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d)the immediately preceding paragraph. The amount paid or payable by an indemnified party 17 as a result of the losses, claims, damages, expenses, liabilities, or judgements referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11(d5.6(d), no underwriter holder 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 of such selling holder were offered to the public pursuant to such registration statement exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered to the public exceeds the amount of any damages which the Foundation selling holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person person found guilty by a court of competent jurisdiction of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not found guilty by a court of competent jurisdiction of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The Neither the Company nor the holders shall have any obligation under this Agreement (other than as set forth in this Section 5.6) to provide the other with indemnification or contribution in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 5.6; provided, however, that the provisions of this Section 11 5.6 shall be in addition to any not relieve an indemnifying party from liability which any party it may have to any an indemnified party other party and shall survive any termination of this Agreement. The indemnification provided by than with respect to the matters referred to in this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner5.6.
Appears in 1 contract
Sources: Class B Warrant Agreement (Soy Environmental Products Inc)
Indemnification; Contribution. (a) The Company shall will indemnify and hold harmless harmless, to the Foundationfullest extent permitted by law, its officers any Holder and directorsany underwriter for such Holder, and each person, if any, who controls the Holder or such underwriter, from and against any agent or investment adviser thereof against and all losses, damages, claims, damagesliabilities, liabilities joint or several, costs and expenses (including reasonable attorneys' fees and expensesany amounts paid in any settlement effected with Company's consent) incurred by to which the Holder or any such party pursuant to any actual underwriter or threatened actioncontrolling person may become subject under applicable law or otherwise, suitinsofar as such losses, proceeding damages, claims, liabilities (or investigation arising actions or proceedings in respect thereof), costs or expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statementthe registration statement or included in the prospectus, any Prospectus as amended or preliminary Prospectus, or any amendment or supplement to any of the foregoingsupplemented, or (ii) any the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) under which they are made, not misleading, except in each case insofar as and Company will reimburse the same arise out of or are based uponHolder, any such untrue statement or omission made in reliance on and in conformity with information with respect to the Foundation furnished to the Company by the Foundation or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents underwriter and each Person who controls such underwriters (within the meaning of Section 15 controlling person of the Securities Act Holder or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Foundation. Notwithstanding the foregoing provisions of this Section 11(a)underwriter, the Company shall not be liable to the Foundationpromptly upon demand, for any Person who participates as an underwriter in the offering or sale of Registrable Securities reasonable legal or any other Personexpenses incurred by them in connection with investigating, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act preparing to defend or Section 20 of the Exchange Act), under this Section 11 for any defending against or appearing as a third party witness in connection with such loss, claim, damage, liability (or liability, action or proceeding proceeding; provided, however, that Company will not be liable in respect thereof) any such case to the extent that any such loss, damage, liability, cost or expense that arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in strict conformity with written information furnished by a Holder to the preliminary Prospectus managing underwriter specifically for inclusion therein; provided, further, that the indemnity agreement contained in this subsection 2.6(a) shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the Foundationconsent of Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or other Person on behalf of the Foundationselling Holder, failed to send the underwriter or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation any controlling person of the selling Holder or the underwriter, and regardless of any sale in connection with such offering by the selling Holder. Such indemnity shall survive the transfer of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and timely furnished sufficient copies thereof to the Foundation in accordance with this Agreementsecurities by a selling Holder.
(b) In connection with any Each Holder participating in a registration of Registrable Securities pursuant to this Agreement, the Foundation shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Foundation, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to hereunder will indemnify and hold harmless the Company, any underwriter for Company, and each person, if any, who controls Company or such underwriter, each such party's officers from and directors against any and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the selling Holder's consent) to which Company or any such controlling person and/or any such underwriter may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities and (or actions or proceedings in respect thereof), costs or expenses (including reasonable attorneys' fees and expenses) incurred by each such party pursuant to any actual or threatened action, suit, proceeding or investigation arising arise out of or are based upon on (i) any untrue or alleged untrue statement of any material fact contained in any Registration Statementthe registration statement or included in the prospectus, any Prospectus as amended or preliminary Prospectus, or any amendment or supplement to any of the foregoingsupplemented, or (ii) any the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) under which they were made, not misleading, and each such Holder will reimburse Company, any underwriter and each such controlling person of Company or any underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent extent, that any such untrue statement or alleged untrue statement or omission is or alleged omission was so made in reliance on and in strict conformity with written information with respect furnished by such Holder to the Foundation furnished to the Company or any managing underwriter by the Foundation or its counsel specifically for inclusion therein. Notwithstanding ; provided, however, that the foregoing provisions indemnity agreement contained in this subsection 2.6(b) shall not apply to amounts paid in settlement of this Section 13(b)any such claim, loss, damage, liability, or action if such settlement is effected without the Foundation consent of such Holder, which consent shall not be liable to unreasonably withheld. In no event shall the Company, liability of any underwriter, each Holder exceed the gross proceeds received by such parties' officers or directors, any other Person who controls any such party (within Holder from the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Foundation had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statementoffering.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice Promptly after receipt by an indemnified party pursuant to the indemnifying party after the receipt by such indemnified party provisions of any written subsections 2.6(a) or (b) of notice of the commencement of any actionaction involving the subject matter of the foregoing indemnity provisions, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may will, if a claim indemnification or contribution pursuant thereof is to this Section 11 (provided that failure to give such notification shall not affect the obligations of be made against the indemnifying party pursuant to this Section 11 except the provisions of said subsections 2.6(a) or (b), promptly notify the indemnifying party of the commencement thereof; but the omission to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than to the extent the indemnifying party shall have been to be notified is actually prejudiced as a result of such failure)thereby. In case any such action shall be is brought against any indemnified party and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall be entitled have the right to participate therein in, and, to the extent that it shall may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any action include both the indemnified party (who shall not, except with and the consent indemnifying party and there is a conflict of interests which would prevent counsel for the indemnifying party from also representing the indemnified party, be the indemnified party or parties shall have the right to select one separate counsel to participate in the indemnifying party), and after defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall will not be liable to such indemnified party under this Section 11 pursuant to the provisions of said subsections 2.6(a) or (b) for any legal expenses of or other counsel or any other expenses, in each case expense subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoingthereof, if unless (i) the indemnified party shall have employed counsel in accordance with the provision of the preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to such the indemnified party to take charge of represent the defense of such action indemnified party within a reasonable time after the notice of the commencement of such the action (so long as such failure and within 15 days after written notice of the indemnified party's intention to employ separate counsel is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactoryprevious sentence, or (iii) or if the indemnifying party shall not have demonstrated to has authorized the reasonable satisfaction employment of counsel for the indemnified party its ability to finance such defense, or (ii) at the actual or potential defendants in, or targets of, any such action include both expense of the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the party. No indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or regulatory counsel or firm of counsel) selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. No indemnified party shall will consent to entry of any judgment or enter into any settlement without which does not include as an unconditional term thereof the consent (which consent, giving by the claimant or plaintiff to such indemnified party of a release from all liability in the case of an action, suit, respect to such claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) of each indemnifying partylitigation.
(d) If recovery is not available under the foregoing indemnification from the indemnifying party provided for in this Section 11 is unavailable provisions with respect to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses a matter referred to in Sections 2.6 (a) or(b) hereof, for any reason other than as specified therein, then the indemnifying party, in lieu of indemnifying such indemnified party, parties entitled to indemnification by the terms thereof shall contribute be entitled to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, contribution to liabilities and expenses as more fully set forth in such proportion as is appropriate an underwriting agreement to reflect the relative fault of the indemnifying party and indemnified party be executed in connection with such registration. In determining the actions amount of contribution to which resulted in such lossesthe respective parties are entitled, claims, damages, liabilities and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party there shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and considered the parties' relative intent, knowledge, knowledge and access to information and concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or prevent such action. The amount paid or payable by a party as a result of the lossesomission, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11(d). Notwithstanding appropriate under the provisions of this Section 11(d), circumstances; provided that no underwriter party shall be required to contribute any an amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise would have been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and the Foundation shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Foundation were offered pursuant to the public exceeds the amount of any damages which the Foundation has otherwise foregoing indemnification provisions if they had 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 Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 11(a) or (b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d)available.
(e) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party, so long as such indemnified party is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract