Indemnification; Contribution. 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 meaning of the Securities Act, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewith; (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; or (iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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. 7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder. 7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. 7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 9 contracts
Sources: Registration Rights Agreement (Inspire Veterinary Partners, Inc.), Registration Rights Agreement (Inspire Veterinary Partners, Inc.), Registration Rights Agreement (Inspire Veterinary Partners, Inc.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the (a) The Company shall indemnify and hold harmless each Selling Holder, its respective officers and directors, and each Person, if any, who controls such Selling Holder within the meaning of either Section 15 of the Securities ActAct or Section 20 of the Exchange Act and any agents, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, representatives or advisers thereof against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ fees and disbursements expenses and expenses reasonable costs of investigation, ) incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 investigation arising 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 statementany Registration Statement, including any Prospectus or preliminary prospectus or final prospectus contained thereinProspectus, or any amendments amendment or supplements thereto or supplement to any documents filed under state securities or “blue sky” laws in connection therewith;
of the foregoing, (ii) The 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 Prospectus, in light of the circumstances then existing) not misleading; or
, or (iii) Any any violation or alleged violation by the Company of the Securities Actany United States federal, the Exchange Act, any applicable state securities or common law or any rule or regulation promulgated under applicable to the Securities Act, the Exchange Act or any applicable state securities law arising from or Company and relating to action required of or inaction by the Company in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 registration except in each case insofar as the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises same arise out of or is are based upon a Violation which occurs upon, any such untrue statement or omission made in reliance upon on and in conformity with written information with respect to the Holders furnished in writing to the Company by the indemnified party Holders or their counsel expressly for use in therein. In connection with such registration; providedan Underwritten Offering, 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder Company shall indemnify the underwriters thereof, their officers, directors and hold harmless the Company, agents and each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, Person who controls the Company such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, any other Selling Holder, any controlling ) to the same extent as provided above with respect to the indemnification of the Holders.
(b) 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 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, proceeding or investigation or threat thereof made in writing for which such indemnified party may make a claim under indemnification or contribution pursuant to this Section 7, 13 (provided that failure to give such indemnified party notification shall deliver to not affect the obligations of the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right pursuant to participate in, and, this Section 13 except to the extent the indemnifying party so desiresshall have been 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 noticednotified, to assume the defense thereof thereof, with counsel mutually reasonably satisfactory to the parties, acting reasonably; provided, however, that an such indemnified party (who shall have the right to retain its own counselnot, except with the fees and disbursements and expenses consent of the indemnified party, be counsel to be paid by the indemnifying party), if representation of and after notice from the indemnifying party to such indemnified party by of its election so to assume the counsel retained by defense thereof, the indemnifying party would shall not be inappropriate due liable to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve 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 of any liability that it may shall not have employed counsel reasonably satisfactory to any such indemnified party otherwise than 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 this Section 7. Any fees and expenses incurred by 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 (including any fees and expenses incurred in connection with investigating ii) the indemnified party shall have reasonably concluded or preparing been advised by counsel that there may be legal defenses available to defend other indemnified parties to such action which could result in a conflict of interest for such counsel or proceeding) shall be paid prejudice the prosecution of the defenses available to the such 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 then such indemnified party shall have the right to employ separate counsel in any such actionof its choosing, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable consent to an indemnified party for entry of any judgment or enter into any settlement without the consent (which consent, in the case of any an action, suit, claim or proceeding or claim without the written consent of the indemnifying partyexclusively seeking monetary relief, which consent shall not be unreasonably withheld) of the applicable indemnified party.
7.4. (c) If the indemnification required by this Section 7 from the indemnifying party provided for in this Section 13 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7:
(i) The 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 or and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions or omissions which resulted in such losses, claims, damages, liabilities or and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties party shall be determined by reference to, among other things, whether any Violation 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 committed made by, or relates to information supplied (in writing, in the case of the Holders) by, such indemnifying party or indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction 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 7.1 and Section 7.213(b) hereof, any legal or and other fees or and 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 7.4 13(c) 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 7.4(i13(c). Any underwriter’s obligations in this Section 13(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 7.413(c), an indemnifying party that is a Selling Holder will not no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold underwritten by such indemnifying party it and distributed to the public were offered to the public exceeds the amount of any damages that which such indemnifying party underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 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 13, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 13(a) hereof without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 13(c).
(d) The provisions of this Section 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 13 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.
Appears in 7 contracts
Sources: Conversion and Exchange Agreement (Cadiz Inc), Conversion and Exchange Agreement (Cadiz Inc), Registration Rights Agreement (Cadiz Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement Registration Statement under this Agreement:
7.18.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless the Holder and each Selling HolderPermitted Holder Group Transferee, each Person, if any, who controls such Selling Holder or Permitted Holder Group Transferee within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling the Holder and each Permitted Holder Group Transferee, and any such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 8.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 8 shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Holder provided, however, that no such underwriter shall be entitled to indemnification under this Agreement if such person shall have entered into a separate underwriting or indemnification agreement with the Company.
7.28.2. To the extent permitted by applicable law, each Selling the Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 the Company and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 in writing by such Selling the Holder expressly specifically for use in connection with such registration; provided, further, however, that (x) the indemnification required by this Section 7.2 8.2 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 Registrable SecuritiesHolder, which consent shall not be unreasonably withheld; provided, conditioned or delayedfurther, and (y) however, in no event shall the liability of the Holder be greater in amount than the dollar amount of any indemnity under this Section 7.2 exceed the gross net proceeds from by the applicable offering received by Holder upon sale of Registrable Securities giving rise to such Selling Holderindemnification obligation.
7.38.3. Promptly after receipt by an indemnified party under this Section 7 8 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 78, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that subject to the rights of an indemnified party shall have the right to retain its own counsel, with 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 proceedingas hereinafter provided. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 8 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 78. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) owed by the indemnifying party hereunder shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether subject to refund if 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.48.4. If the indemnification required by this Section 7 8 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 78:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 8.1 and Section 7.28.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding; provided, however, that in no event shall the Holder be required to contribute an amount greater than the dollar amount of the net proceeds received by the Holder with respect to the sale of any securities.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 8.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i8.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
8.5. If indemnification is available under this Section 8 the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 8 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 8.4.
8.6. The obligations of the Company, the Holder and any Permitted Holder Group Transferee under this Section 8 shall survive the completion of any offering of Registrable Securities pursuant to a Registration Statement under this Agreement, and otherwise.
Appears in 5 contracts
Sources: Investment Agreement (Dupont E I De Nemours & Co), Investment Agreement (Dupont E I De Nemours & Co), Investment Agreement (Dupont E I De Nemours & Co)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 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 meaning of the Securities Act, and each affiliate, officer, director, partner, agent and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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”):
(ia) Any untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus Prospectus or final prospectus Prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(iib) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iiic) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 that occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 6 shall not apply to any underwriter Holder 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, 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 Holder was under an obligation to deliver such final prospectus and failed to do so.
7.2. 6.2 To the extent permitted by applicable law, each Selling Holder Holder, severally and not jointly, shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statementRegistration Statement, and each Person, if any, who controls the Company 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)expenses, including attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 7.2 6.2 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 Registrable Securities, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, conditioned or delayed, and (y) in no event shall the amount liability of any indemnity the Holder under this Section 7.2 exceed 6.2 shall be limited in an amount equal to the gross net proceeds from the applicable offering received sale of the shares sold by such Selling Holder, unless such liability arises out of or is based on willful conduct or gross negligence by such Holder.
7.3. 6.3 Promptly after receipt by an indemnified party under this Section 7 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 76, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 76. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 6.4 If the indemnification required by this Section 7 6 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 76:
(ia) 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 or expenses in such proportion as is appropriate to reflect (i) the relative benefits received by the indemnifying party or parties, on the one hand and the indemnified party on the other from the sale of the Registrable Securities, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party on the one hand and indemnified parties on the other in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 6.1 and Section 7.26.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 6.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i6.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(c) Notwithstanding the provisions of this Section 6.4, a Holder shall not be required to contribute any amount or make any other payments under this Agreement that in the aggregate exceed the net proceeds received by the Holder from the sales of the Registrable Securities of the Company.
6.5 The obligations of the Company and the selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 5 contracts
Sources: Registration Rights Agreement (Teraforce Technology Corp), Registration Rights Agreement (Teraforce Technology Corp), Registration Rights Agreement (Teraforce Technology Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) The Company shall, to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderHolder of Registrable Securities, any Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Person, a “Controlling Person”), their respective direct and indirect general and limited partners, advisory board members, directors, officers, trustees, managers, members, employees, agents, Affiliates and shareholders, and each other Person, if any, who acts on behalf of or controls any such Selling Holder within the meaning or Controlling Person (each of the Securities Actforegoing, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling a “Covered Person, ”) against any and all losses, claims, actions, damages, liabilities and expenses (expenses, joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Covered Person may become subject under the Securities Act, the Exchange Act Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or 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 statementor incorporated by reference in any Registration Statement, including any Prospectus, preliminary Prospectus, free writing prospectus or final prospectus contained therein, (as defined in Rule 405 under the Securities Act or any amendments successor rule thereto) or supplements any amendment thereof or supplement thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
document incorporated by reference therein, (ii) The any omission or alleged omission to state therein of a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; or
misleading or (iii) Any any violation or alleged violation by the Company of the Securities Act, the Exchange Act, Act or any applicable other similar federal or state securities law laws or any rule or regulation promulgated under thereunder applicable to the Securities Act, the Exchange Act or any applicable state securities law arising from or Company and relating to any action or inaction required of the Company in connection with any registration of securities, and the offer and sale of Registrable Securities pursuant to this Agreement; providedCompany shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, however, that the indemnification required by this Section 7.1 shall not apply to amounts paid in settlement of defending or settling any such loss, claim, damageaction, liability damage or expense if such settlement is effected without the consent of liability; provided, that the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be so liable in any such case for to the extent that any such loss, claim, action, 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 written information furnished to the Company by the indemnified party expressly for use 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 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 preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and a copy of the final prospectus has not been sent or given to such person at or prior in conformity with, written information prepared and furnished to the confirmation of sale Company by such Covered Person expressly for use therein. This indemnity shall be in addition to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do soany liability the Company may otherwise have.
7.2. To (b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and shall, to the fullest extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directorsdirectors and officers, each of its officers employees, agents and any Person who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling Holder, any controlling is or might be deemed to be a 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, actions, damages, liabilities and expenses (expenses, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of the foregoing Persons them may otherwise become subject under the Securities Act, the Exchange Act Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or expenses arise out of or are based upon (i) any Violationuntrue or alleged untrue statement of a material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but, in the case of each case of clauses (i) and (ii), only to the extent (and only to the extent) that such Violation occurs untrue statement or alleged untrue statement, or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto in reliance upon upon, and in conformity with with, written information prepared and furnished to the Company by such Selling Holder expressly for use therein, and such Holder shall reimburse the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person for any legal or other expenses reasonably incurred by them in connection with such registration; providedinvestigating, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of defending or settling any such loss, claim, damageaction, liability damage or expense if settlement is effected without liability; provided, that the consent of the relevant Selling obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder of Registrable Securities, which consent and shall not be unreasonably withheld, conditioned or delayed, and exceed an amount equal to the net proceeds (yafter deducting Selling Expenses) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering actually received by such Selling HolderHolder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. This indemnity shall be in addition to any liability which such Holder may otherwise have.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party (c) Any Person entitled to indemnification hereunder shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver give prompt written notice to the indemnifying party within a reasonable time following the commencement of any such actionclaim with respect to which it seeks indemnification; provided, if prejudicial that any failure or delay to its ability to defend such action, shall relieve such so notify the indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification hereunder is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any liability such claim or action, with counsel reasonably acceptable to the indemnified party; provided, that it may have to any indemnified party otherwise than pursuant shall continue to this Section 7. Any fees be entitled to participate in the defense of such claim or action, with counsel of its own choice, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (iA) the indemnifying party has agreed in writing to pay such fees fees, costs and expenses or expenses, (iiB) the indemnifying party shall have has failed to promptly assume the defense of such claim or action within a reasonable time after receipt of notice of such claim or action, (C) after having assumed the defense of such claim or proceeding action, the indemnifying party fails to employ counsel reasonably acceptable to the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest or (iiiE) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such indemnified party and has reasonably concluded based upon the indemnifying party, and such indemnified party shall have been advised by advice of counsel that there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which are different from or in addition additional to those available to the indemnifying party and that party. Subject to the assertion of such defenses would create a conflict of interest such that counsel employed by proviso in the foregoing sentence, no 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 notshall, in connection with any one such action, claim or proceeding action or separate but substantially similar or related actions, claims or proceedings actions in the same jurisdiction arising out of the same general allegations circumstances or circumstancesallegations, be liable for the reasonable fees fees, costs and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counselcounsel which is necessary, in the good faith opinion of counsel for the indemnified party, in order to adequately represent the indemnified parties) at any time for all such indemnified parties, unless in . The indemnifying party shall not have the reasonable judgment of such right to settle a claim or action for which any indemnified party a conflict is entitled to indemnification hereunder without the consent of interest may exist between such the indemnified party 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 not consent to pay the fees entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and expenses includes as an unconditional term thereof the giving by the claimant or plaintiff therein to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, of a full and final release from all liability in respect of such additional counsel claim or counsels)action. No The indemnifying party shall not be liable hereunder for any amount paid or payable or incurred pursuant to or in connection with any judgment entered or settlement effected with the consent of an indemnified party for any settlement of any action, proceeding or claim without the written consent of unless the indemnifying party, which party has also consented to such judgment or settlement (such consent shall not to be unreasonably withheld, conditioned or delayed).
7.4. (d) If the indemnification required by provided for in this Section 7 from the indemnifying party 11 is held by a court of competent jurisdiction to be unavailable to to, or unenforceable by, an indemnified party hereunder in respect of any lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense referred to in this Section 7:
(i) The herein, then the applicable indemnifying party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, in connection with the actions statements, omissions or violations which resulted in such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of such the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 by the indemnifying party or by the indemnified partiesparty, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities was perpetrated by the indemnifying party or the indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement, omission or violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 hereto were determined by pro rata allocation or by any other method of or allocation which that does not take into account the equitable considerations referred to in this Section 7.4(i11(d). Notwithstanding In no event shall the provisions amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 7.4, 11(d) exceed an indemnifying party that is a amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder will not be required to contribute any amount in excess the sale of the amount by which the total price at which the Registrable Securities sold by that gives rise to such indemnifying party and distributed obligation to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissioncontribute. No Person indemnified party guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The provisions of this Section 11 shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party and shall survive the Transfer of any Registrable Securities by any Holder.
Appears in 5 contracts
Sources: Registration Rights Agreement (Yoda PLC), Registration Rights Agreement (Capital Maritime & Trading Corp.), Registration Rights Agreement (Capital Clean Energy Carriers Corp.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 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 meaning of the Securities Act, and each affiliate, officer, director, partner, agent and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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”"):
(ia) Any untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus Prospectus or final prospectus Prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(iib) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iiic) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 that occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 6 shall not apply to any underwriter Holder 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, 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 Holder was under an obligation to deliver such final prospectus and failed to do so.
7.2. 6.2 To the extent permitted by applicable law, each Selling Holder Holder, severally and not jointly, shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statementRegistration Statement, and each Person, if any, who controls the Company 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)expenses, including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 7.2 6.2 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 Registrable Securities, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, conditioned or delayed, and (y) in no event shall the amount liability of any indemnity the Holder under this Section 7.2 exceed 6.2 shall be limited in an amount equal to the gross net proceeds from the applicable offering received sale of the shares sold by such Selling Holder, unless such liability arises out of or is based on willful conduct or gross negligence by such Holder.
7.3. 6.3 Promptly after receipt by an indemnified party under this Section 7 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 76, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 76. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 6.4 If the indemnification required by this Section 7 6 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 76:
(ia) 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 or expenses in such proportion as is appropriate to reflect (i) the relative benefits received by the indemnifying party or parties, on the one hand and the indemnified party on the other from the sale of the Registrable Securities, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party on the one hand and indemnified parties on the other in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 6.1 and Section 7.26.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 6.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i6.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(c) Notwithstanding the provisions of this Section 6.4, a Holder shall not be required to contribute any amount or make any other payments under this Agreement that in the aggregate exceed the net proceeds received by the Holder from the sales of the Registrable Securities of the Company.
6.5 The obligations of the Company and the selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 5 contracts
Sources: Registration Rights Agreement (Teraforce Technology Corp), Registration Rights Agreement (Teraforce Technology Corp), Registration Rights Agreement (Teraforce Technology Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) Company shall indemnify, to the fullest extent permitted by applicable lawLaw, the Company shall indemnify each holder of Registrable Securities, its officers, directors, partners, employees and hold harmless each Selling Holderagents, if any, and each Person, if any, who controls such Selling Holder holder within the meaning of Section 15 of the Securities Act, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (under the Securities Act or common law or otherwise), joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred resulting from any violation by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any Company of the foregoing Persons may become subject under provisions of 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 any registration statement, including statement or prospectus (and as amended or supplemented if amended or supplemented) or any preliminary prospectus or final prospectus contained therein, or caused by any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) 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 any prospectus, in light of the circumstances under which they were made) not misleading; or
, except to the extent that such losses, claims, damages, liabilities (iiior proceedings in respect thereof) Any violation or expenses are caused by any untrue statement or alleged violation untrue statement contained in, or by any omission or alleged omission from, information concerning any holder of Registrable Securities furnished in writing to Company by such holder expressly for use therein. No action or failure to act on the part of the underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence. In connection with any underwritten offering pursuant to Section 3.2, Company agrees to enter into an underwriting agreement in customary form with the applicable underwriters, and 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 herein before provided with respect to the indemnification of the holders of Registrable Securities; provided that 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 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; provided, however, extent 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 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 settlement is effected without statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the consent of the Company underwriter was provided with such amended or supplemented final prospectus.
(which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in b) In connection with 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 written information furnished to the Company by the indemnified party expressly for use registration statement in connection with an offering in which a holder of Registrable Securities is participating, each such registration; providedholder, furtherseverally and not jointly, that the indemnity agreement contained in this Section 7 shall not apply to any underwriter indemnify, to the fullest extent that permitted by applicable Law, Company, each underwriter and their respective officers, directors, employees and agents, if any, and each Person, if any, who controls Company or such underwriter within the meaning of Section 15 of the Securities Act, against any such loss is based on losses, claims, damages, liabilities (or arises out of an proceedings in respect thereof) and expenses resulting from any untrue statement or alleged untrue statement of a material factfact in, or an any omission or alleged omission to state of a material factfact required to be stated in, contained in the registration statement or omitted from any prospectus or preliminary prospectus if or any amendment thereof or supplement thereto or necessary to make the final prospectus shall correct statements therein (in the case of any prospectus, in light of the circumstances under which they were made) not misleading, but only to the extent that such untrue statement or alleged untrue statementis contained in, or such omission or alleged omissionis from, and information so concerning 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred holder furnished in writing by such 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 holder expressly for use in connection with therein; provided that such registration; provided, however, that holder’s obligations hereunder shall be limited to an amount equal to the net proceeds to such holder of the Registrable Securities sold pursuant to such registration statement.
(xc) Any Person entitled to indemnification under the indemnification required by provisions of this Section 7.2 3.5 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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (yi) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written give prompt notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial claim with respect to its ability to defend such action, shall relieve which it seeks indemnification and (ii) permit such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 actionclaim, claim or proceeding on behalf of such with counsel reasonably satisfactory to the indemnified party; and if such defense is so assumed, it being understood, however, that the such indemnifying party shall not, in connection with not enter into any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in settlement without the same jurisdiction arising out consent 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 if such settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any other of such indemnified parties liability for any settlement made without its consent (which shall not be unreasonably withheld); and any underwriting agreement entered into with respect to such action, claim or proceeding, in which any registration statement provided for under this Article III shall so provide. In the event the an indemnifying party shall elect not to assume the defense of a claim, such indemnifying party shall not be obligated to pay the fees and expenses of such additional more than one counsel or counsels). No firm of counsel for all parties indemnified by such indemnifying party shall be liable to an indemnified party in respect of such claim.
(d) If for any settlement of any actionreason the foregoing indemnity is unavailable, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from then the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 the indemnified party as a result of such losses, claims, damages, liabilities 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 parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, party as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions foregoing, no holder of this Section 7.4, an indemnifying party that is a Selling Holder will not Registrable Securities shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise holder would have been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionto an indemnified party if the indemnity under Section 3.5(b) were 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. The obligation of any Person to contribute pursuant to this Section 3.5 shall be several and not joint.
(e) An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 3.5 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 this Section 3.5 shall remain in full force and effect regardless of any investigation made by or on behalf of a participating holder of Registrable Securities, 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 holder and the termination of this Agreement for any reason.
Appears in 4 contracts
Sources: Merger Agreement (General Finance CORP), Stockholders Agreement (General Finance CORP), Registration Rights Agreement (General Finance CORP)
Indemnification; Contribution. If (a) Incident to any registration of any Registrable Securities are included in a registration statement under the Securities Act pursuant to this Agreement:
7.1. To the extent permitted by applicable law, the Company shall will indemnify and hold harmless to the fullest extent permitted by law each underwriter, each 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) and directors, officers, employees, representatives, members and agents of any of them (a “Selling Holder”), and each Person, if any, Person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities ActAct or Section 20 of the Exchange Act (a “Controlling Person”), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (including any investigation, legal and other expenses reasonably 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), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
on (i) Any any untrue statement or alleged untrue statement of a material fact contained in such registration statement, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or any documents filed under state securities or “blue sky” laws in connection therewith;
prospectus), (ii) The 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 it not misleading; or
misleading or (iii) Any any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaws; provided, however, that the indemnification required by this Section 7.1 shall Company will not apply be liable to amounts paid in settlement of any the extent that such loss, claim, damage, expense or liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises out of or from and is based upon a Violation which occurs on an untrue statement or omission or alleged untrue statement or omission made in reliance upon on and in conformity with written information furnished in writing to the Company by the indemnified party such underwriter, Selling Holder or Controlling Person expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 shall not apply registration statement. With respect to any underwriter to the extent that any such loss is based on or arises out of an untrue statement or omission or alleged untrue statement of a material fact, or an omission or alleged omission in the information furnished in writing to state a material fact, contained the Company by such Selling Holder expressly for use in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue registration 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall will indemnify and hold harmless each underwriter, the Company, each of Company (including its directors, each of its officers who shall have signed the registration statementofficers, employees, representatives, members and agents), each Personother Holder (including its partners (including partners of partners and stockholders of such partners) and directors, if anyofficers, employees, representatives and agents of any of them, and each Person who controls the Company any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), any other Selling Holder, any controlling Person of any such other Selling Holder from and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, insofar as such losses, claims, damages, liabilities and expenses arise out of at common law or are based upon any Violation, in each case otherwise to the same extent (and only to provided in the extentimmediately preceding sentence. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 5(a) that such Violation occurs in reliance upon and in conformity with written information furnished exceed the net proceeds received by such Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder from its sale of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity Securities under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holderregistration statement.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceedingb) 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required provided for in Section 5(a) above for any reason is held by this Section 7 from the indemnifying party is 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 in therein, then each indemnifying party under this Section 7:
(i) The indemnifying party5, 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 or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the Selling Holders and the underwriters from the offering of the Registrable Securities and (ii) the relative fault of the indemnifying party Company, the Selling Holders and indemnified parties the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, 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 3(a) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed solely 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 securities covered by such registration statement. The relative fault of such indemnifying party the Company, the Selling Holders and indemnified parties the underwriters shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Company, such indemnifying party the Selling Holders or indemnified parties, the underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto Selling Holders agree that it would not be just and equitable if contribution pursuant to this Section 7.4 5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4In no event, an indemnifying party that is however, shall a Selling Holder will not be required to contribute any amount under this Section 5(b) in excess of the amount net proceeds received by which the total price at which the such Selling Holder from its sale of Registrable Securities sold by under such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party 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.
(c) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 5 shall be 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, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the 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.
Appears in 4 contracts
Sources: Right of Last Refusal Agreement (GlassHouse Technologies Inc), Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc), Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) The Company shall, to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderShareholder and their respective affiliates, directors, officers and employees (each Person, if any, who controls such Selling Holder within the meaning of the Securities Actforegoing, and each officertogether with the Shareholders, director, partner, employee and affiliate of such Selling Holder and such controlling a “Covered Person, ”) against any and all losses, claims, actions, damages, liabilities and expenses (expenses, joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Covered Person may become subject under the Securities Act, the Exchange Act Act, any state “blue sky” securities laws, any equivalent non-U.S. securities laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or 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 or incorporated by reference in any such registration statementRegistration Statement, including any prospectus, preliminary prospectus, free writing prospectus or final prospectus contained therein, (as defined in Rule 405 under the Securities Act or any amendments successor rule thereto) or supplements any amendment thereof or supplement thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
document incorporated by reference therein, (ii) The any omission or alleged omission to state therein of a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; or
misleading or (iii) Any any violation or alleged violation by the Company of the Securities Act, the Exchange Act, Act or any applicable other similar federal or state securities law laws or any rule or regulation promulgated under thereunder applicable to the Securities Act, the Exchange Act or any applicable state securities law arising from or Company and relating to any action or inaction required of the Company in connection with any registration of securities, and the offer and sale of Registrable Securities pursuant to this Agreement; providedCompany shall reimburse such Covered Persons for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, however, that the indemnification required by this Section 7.1 shall not apply to amounts paid in settlement of defending or settling any such loss, claim, damageaction, liability damage or expense if such settlement is effected without the consent of liability; provided that the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be so liable in any such case for to the extent that any such loss, claim, action, 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 written information furnished to the Company by the indemnified party expressly for use 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 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 preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, made or incorporated by reference in any such Registration Statement, prospectus, preliminary prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and a copy in conformity with, written information prepared and furnished to the Company or prepared on behalf of the final prospectus has not been sent or given Company by such Covered Person expressly for use therein. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In connection with any registration in which a Shareholder is participating, each such person at or prior Shareholder shall furnish to the confirmation of sale to Company in writing such person if information regarding itself as is required for use in any such underwriter was under an obligation to deliver such final Registration Statement or prospectus and failed shall, to do so.
7.2. To the fullest extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directorsdirectors and officers, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and each officer, director, partneremployees, and employee of such other Selling Holder and such controlling Person, affiliates against any and all losses, claims, actions, damages, liabilities and expenses (expenses, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of the foregoing Persons them may otherwise become subject under the Securities Act, the Exchange Act Act, any state “blue sky” securities laws, any equivalent non-U.S. securities laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or expenses arise out of or are based upon (i) any Violationuntrue or alleged untrue statement of a material fact contained in the Registration Statement, prospectus, preliminary prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but, in the case of each case of clauses (i) and (ii), only to the extent (and only to the extent) that such Violation occurs untrue statement or alleged untrue statement, or omission or alleged omission, is made in such Registration Statement, prospectus, preliminary prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto in reliance upon upon, and in conformity with with, written information prepared and furnished to the Company by such Selling Holder Shareholder expressly for use therein, and such Shareholder shall reimburse the Company, its directors and officers, employees, agents and affiliates for any legal or other expenses reasonably incurred by them in connection with such registration; providedinvestigating, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of defending or settling any such loss, claim, damageaction, liability damage or expense if settlement is effected without liability; provided that the consent of the relevant Selling Holder of Registrable Securitiesobligation to indemnify pursuant to this Section 5.3(b) shall be individual and several, which consent not joint and several, for each participating Shareholder and shall not be unreasonably withheld, conditioned or delayed, exceed an amount equal to the net proceeds (after deducting any costs and (yexpenses paid by the participating Shareholder) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering actually received by such Selling HolderShareholder in the sale of Registrable Securities to which such Registration Statement or prospectus relates. This indemnity shall be in addition to any liability that such Shareholder may otherwise have.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party (c) Any Person entitled to indemnification hereunder shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver give prompt written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial claim with respect to its ability which it seeks indemnification; provided that any failure or delay to defend such action, shall relieve such so notify the indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification hereunder is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any liability such claim or action, with counsel reasonably acceptable to the indemnified party; provided that it may have to any indemnified party otherwise than pursuant shall continue to this Section 7. Any fees be entitled to participate in the defense of such claim or action, with counsel of its own choice, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (iA) the indemnifying party has agreed in writing to pay such fees fees, costs and expenses or expenses, (iiB) the indemnifying party shall have has failed to promptly assume the defense of such claim or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or proceeding action, the indemnifying party fails to employ counsel reasonably acceptable to the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest or (iiiE) 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 has reasonably concluded that there may be one or more legal or equitable defenses available to it which and/or any other indemnified party that is or are different from or in addition additional to those available to the indemnifying party and that party. Subject to the assertion of such defenses would create a conflict of interest such that counsel employed by proviso in the foregoing sentence, no 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 notshall, in connection with any one such action, claim or proceeding action or separate but substantially similar or related actions, claims or proceedings actions in the same jurisdiction arising out of the same general allegations circumstances or circumstancesallegations, be liable for the reasonable fees fees, costs and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all such indemnified parties, unless in . The indemnifying party shall not have the reasonable judgment of such right to settle a claim or action for which any indemnified party a conflict is entitled to indemnification hereunder without the consent of interest may exist between such the indemnified party 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 not consent to pay the fees entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and expenses includes as an unconditional term thereof the giving by the claimant or plaintiff therein to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, of a full and final release from all liability in respect of such additional counsel claim or counsels)action. No The indemnifying party shall not be liable hereunder for any amount paid or payable or incurred pursuant to or in connection with any judgment entered or settlement effected with the consent of an indemnified party for any settlement of any action, proceeding or claim without the written consent of unless the indemnifying party, which party has also consented to such judgment or settlement (such consent shall not to be unreasonably withheld, conditioned or delayed).
7.4. (d) If the indemnification required by provided for in this Section 7 from the indemnifying party 5.3 is held by a court of competent jurisdiction to be unavailable to to, or unenforceable by, an indemnified party hereunder in respect of any lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense referred to in this Section 7:
(i) The herein, then the applicable indemnifying party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, in connection with the actions which statements, omissions or violations that resulted in such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of such the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 by the indemnifying party or by the indemnified partiesparty, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities was perpetrated by the indemnifying party or the indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement, omission or violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 hereto were determined by pro rata allocation or by any other method of or allocation which that does not take into account the equitable considerations referred to in this Section 7.4(i5.3(d). Notwithstanding In no event shall the provisions of amount that an Shareholder may be obligated to contribute pursuant to this Section 7.4, 5.3(d) exceed an indemnifying party that is a Selling Holder will not be required amount equal to contribute the net proceeds (after deducting any amount costs and expenses paid by the participating Shareholder) actually received by such Shareholder in excess the sale of the amount by which the total price at which the Registrable Securities sold by that gives rise to such indemnifying party and distributed obligation to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissioncontribute. No Person indemnified party guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who that was not guilty of such fraudulent misrepresentation.
(e) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or affiliate of such indemnified Person and shall survive the Transfer of securities and the termination of this Agreement, but only with respect to offers and sales of Registrable Securities made before the termination date.
Appears in 4 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Trivago N.V.), Shareholder Agreement (Travel B.V.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) The Company shall, to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, Holder of Registrable Securities and any Person which is or might be deemed to be a “controlling person” of each Person, if any, who controls such Selling Holder of Registrable Securities or any of its subsidiaries within the meaning of Section 15 of the Securities ActAct or Section 20 of the Exchange Act (each such Person, a “Controlling Person”), and their respective directors, officers and employees (each officerof the foregoing, directortogether with such Holders of Registrable Securities, partner, employee and affiliate of such Selling Holder and such controlling a “Covered Person, ”) against any and all losses, claims, actions, damages, liabilities and expenses (expenses, joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Covered Person may become subject under the Securities Act, the Exchange Act Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or 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 or incorporated by reference in any such registration statementRegistration Statement, including any Prospectus, preliminary Prospectus, free writing prospectus or final prospectus contained therein, (as defined in Rule 405 under the Securities Act or any amendments successor rule thereto) or supplements any amendment thereof or supplement thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
document incorporated by reference therein, (ii) The any omission or alleged omission to state therein of a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; or
misleading or (iii) Any any violation or alleged violation by the Company of the Securities Act, the Exchange Act, Act or any applicable other similar federal or state securities law laws or any rule or regulation promulgated under thereunder applicable to the Securities Act, the Exchange Act or any applicable state securities law arising from or Company and relating to any action or inaction required of the Company in connection with any registration of securities, and the offer and sale of Registrable Securities pursuant to this Agreement; providedCompany shall reimburse such Covered Persons for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, however, that the indemnification required by this Section 7.1 shall not apply to amounts paid in settlement of defending or settling any such loss, claim, damageaction, liability damage or expense if such settlement is effected without the consent of liability; provided that the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be so liable in any such case for to the extent that any such loss, claim, action, 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 written information furnished to the Company by the indemnified party expressly for use 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 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 preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and a copy of the final prospectus has not been sent or given to such person at or prior in conformity with, written information prepared and furnished to the confirmation of sale Company by such Covered Person expressly for use therein. This indemnity shall be in addition to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do soany liability the Company may otherwise have.
7.2. To (b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to the Company in writing such information regarding itself as is required for use in any such Registration Statement or Prospectus and shall, to the fullest extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directorsdirectors and officers, each of its officers who shall have signed the registration statementemployees, each Person, if any, who controls the Company within the meaning of the Securities Act, agents and 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, which is or might be deemed to be a Controlling Person against any and all losses, claims, actions, damages, liabilities and expenses (expenses, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of the foregoing Persons them may otherwise become subject under the Securities Act, the Exchange Act Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or expenses arise out of or are based upon (i) any Violationuntrue or alleged untrue statement of a material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but, in the case of each case of clauses (i) and (ii), only to the extent (and only to the extent) that such Violation occurs untrue statement or alleged untrue statement, or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto in reliance upon upon, and in conformity with with, written information prepared and furnished to the Company by such Selling Holder expressly for use therein, and such Holder shall reimburse the Company, its directors and officers, employees, agents and any Person which is or might be deemed to be a Controlling Person for any legal or other expenses reasonably incurred by them in connection with such registration; providedinvestigating, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of defending or settling any such loss, claim, damageaction, liability damage or expense if settlement is effected without liability; provided that the consent of the relevant Selling obligation to indemnify pursuant to this Section 10(b) shall be individual and several, not joint and several, for each participating Holder of Registrable Securities, which consent and shall not be unreasonably withheld, conditioned or delayed, and exceed an amount equal to the net proceeds (yafter deducting any Selling Expenses paid by the participating Holders) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering actually received by such Selling HolderHolder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. This indemnity shall be in addition to any liability which such Holder may otherwise have.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party (c) Any Person entitled to indemnification hereunder shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver give prompt written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial claim with respect to its ability which it seeks indemnification; provided that any failure or delay to defend such action, shall relieve such so notify the indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification hereunder is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any liability such claim or action, with counsel reasonably acceptable to the indemnified party; provided that it may have to any indemnified party otherwise than pursuant shall continue to this Section 7. Any fees be entitled to participate in the defense of such claim or action, with counsel of its own choice, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (iA) the indemnifying party has agreed in writing to pay such fees fees, costs and expenses or expenses, (iiB) the indemnifying party shall have has failed to promptly assume the defense of such claim or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or proceeding action, the indemnifying party fails to employ counsel reasonably acceptable to the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest or (iiiE) 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 has reasonably concluded that there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which are different from or in addition additional to those available to the indemnifying party and that party. Subject to the assertion of such defenses would create a conflict of interest such that counsel employed by proviso in the foregoing sentence, no 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 notshall, in connection with any one such action, claim or proceeding action or separate but substantially similar or related actions, claims or proceedings actions in the same jurisdiction arising out of the same general allegations circumstances or circumstancesallegations, be liable for the reasonable fees fees, costs and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all such indemnified parties, unless in . The indemnifying party shall not have the reasonable judgment of such right to settle a claim or action for which any indemnified party a conflict is entitled to indemnification hereunder without the consent of interest may exist between such the indemnified party 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 not consent to pay the fees entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and expenses includes as an unconditional term thereof the giving by the claimant or plaintiff therein to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, of a full and final release from all liability in respect of such additional counsel claim or counsels)action. No The indemnifying party shall not be liable hereunder for any amount paid or payable or incurred pursuant to or in connection with any judgment entered or settlement effected with the consent of an indemnified party for any settlement of any action, proceeding or claim without the written consent of unless the indemnifying party, which party has also consented to such judgment or settlement (such consent shall not to be unreasonably withheld, conditioned or delayed).
7.4. (d) If the indemnification required by provided for in this Section 7 from the indemnifying party 10 is held by a court of competent jurisdiction to be unavailable to to, or unenforceable by, an indemnified party hereunder in respect of any lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense referred to in this Section 7:
(i) The herein, then the applicable indemnifying party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, in connection with the actions statements, omissions or violations which resulted in such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of such the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 by the indemnifying party or by the indemnified partiesparty, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities was perpetrated by the indemnifying party or the indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement, omission or violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 hereto were determined by pro rata allocation or by any other method of or allocation which that does not take into account the equitable considerations referred to in this Section 7.4(i10(d). Notwithstanding In no event shall the provisions amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 7.4, 10(d) exceed an indemnifying party that is a amount equal to the net proceeds (after deducting any Selling Expenses paid by the participating Holders) actually received by such Holder will not be required to contribute any amount in excess the sale of the amount by which the total price at which the Registrable Securities sold by that gives rise to such indemnifying party and distributed obligation to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissioncontribute. No Person indemnified party guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who which was not guilty of such fraudulent misrepresentation.
(e) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or Controlling Person of such indemnified Person and shall survive the transfer of securities and the Termination Date but only with respect to offers and sales of Registrable Securities made before the Termination Date or during the period following the Termination Date referred to in Section 7(f).
Appears in 3 contracts
Sources: Registration Rights Agreement (Anheuser-Busch InBev SA/NV), Registration Rights Agreement (Altria Group, Inc.), Registration Rights Agreement (Bevco Lux S.a.r.l.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this AgreementSection 9:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 pursuant to a final non-appealable order (collectively a “"Violation”"):
(i) Any 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) The the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) Any any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 9.7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises is determined by a court of competent jurisdiction by a final non-appealable order to have solely arisen out of or is be based upon a Violation which occurs occurred in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 9.7(a) shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statementand employees, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 are determined by a court of competent jurisdiction by a final non-appealable order to have solely arisen out of or are be based upon any Violation, in each case to the extent (and only to the extent) a Violation that such Violation occurs occurred 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 7.2 9.7(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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 9.7(b) exceed the gross net proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 9.7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 79.7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 9.7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 79.7. Any reasonable fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 9.7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 79.7:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.such
Appears in 3 contracts
Sources: Warrant Agreement (Norand Corp /De/), Warrant Agreement (Norand Corp /De/), Warrant Agreement (Norand Corp /De/)
Indemnification; Contribution. If In the event any Registrable Securities are SPSS Common Stock held by a Shareholder is included in a registration statement under this AgreementArticle IV:
7.1. To the extent permitted by applicable law, the Company shall (a) SPSS will indemnify and hold harmless such Shareholder, any underwriter (as defined in the Act) for such Shareholder and each Selling Holder, each Personperson, if any, who controls such Selling Holder Shareholder or underwriter within the meaning of the Securities Act or the 1934 Act, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and ) or expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons they may become subject under the Securities Act, the Exchange 1934 Act or other federal or state lawslaw, insofar as such losses, claims, damages, liabilities and (or actions in respect thereof) or 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 preliminary prospectus or final prospectus contained therein, therein or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
thereto, (ii) The the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
, or (iii) Any any violation or alleged violation by the Company SPSS of the Securities Act, the Exchange 1934 Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange 1934 Act or any applicable state securities law arising from law; and SPSS will pay to each such Shareholder, underwriter or relating to controlling person, any and all legal or other expenses reasonably incurred by them in connection with the offer and sale of Registrable Securities pursuant to this Agreementinvestigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnification required by indemnity agreement contained in this Section 7.1 subsection 4.5(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability liability, action or expense if such settlement is effected without the consent of the Company (SPSS, which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company SPSS be liable in any such case for any such loss, claim, damage, liability liability, action 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 written information furnished to the Company by the indemnified party such Shareholder or any controlling person of such Shareholder expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall (b) Such Shareholder will indemnify and hold harmless the CompanySPSS, each of its directors, each of its officers who shall have has signed the registration statement, each Personperson, if any, who controls the Company SPSS within the meaning of the Securities Act, any other Selling Holderunderwriter, and any controlling Person person of any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Personunderwriter, against any and all losses, claims, damages, liabilities and expenses (joint and or several), including attorneys’ fees and disbursements and ) or expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons persons may otherwise become subject subject, under the Securities Act, the Exchange 1934 Act or other federal or state lawslaw, insofar as such losses, claims, damages, liabilities and (or actions in respect thereto) or 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 Shareholder expressly for use in connection with such registration; and such Shareholder will pay, as incurred, any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this subsection 4.5(b), in connection with investigating or defending any such loss, claim, damage, liability, action or expense; provided, however, that (xthe indemnity agreement contained in this subsection 4.5(b) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability liability, action or expense if such settlement is effected without the consent of the relevant Selling Holder of Registrable Securitiessuch Shareholder, which consent shall not be unreasonably withheld, conditioned withheld or delayed; provided, and (y) that, in no event shall the amount of any indemnity under this Section 7.2 subsection 4.5(b) exceed the gross proceeds from the applicable offering of the shares of SPSS Common Stock received by such Selling HolderShareholder. SPSS shall make the Registration Statement available to the Quantime Shareholders for comment prior to the filing thereof.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 4.5 of notice of the commencement of any action (including any governmental action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7), such indemnified party shall will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4.5, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain its own one separate counsel, with 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 a conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld4.5.
7.4. (d) If the indemnification required by provided for in this Section 7 4.5 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7:
(i) The 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault faults of such indemnifying party and indemnified parties party shall be determined by reference to, among other things, whether any Violation 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 committed made by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. 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 includeinclude any fees, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees charges or expenses (including fees, disbursements and other charges of legal counsel) reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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 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 misrepresentationperson.
Appears in 2 contracts
Sources: Stock Purchase Agreement (SPSS Inc), Stock Purchase Agreement (SPSS Inc)
Indemnification; Contribution. If (a) Incident to any Registrable Securities are included in a registration statement under referred to in this Agreement:
7.1. To the extent permitted by Article V, and subject to applicable law, the Company shall will indemnify and hold harmless each Selling Holderunderwriter, each PersonInvestor or Founder (including for purposes of this Article V each Permitted Transferee) who offers or sells any such Registrable Shares in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), if anyand directors, officers, employees and agents of any of them (a "Selling Stockholder"), and each person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person"), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (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), including attorneys’ fees and disbursements and expenses of investigation, as the same are incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
on (i) Any any untrue statement or alleged untrue statement of a material fact contained in such registration statement, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or any documents filed under state securities or “blue sky” laws in connection therewith;
prospectus), (ii) The 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 it not misleading; or
, or (iii) Any violation or alleged any violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or "blue sky" laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use thereunder in connection with such registration; provided, furtherhowever, that the indemnity agreement contained in this Section 7 shall Company will not apply to any underwriter be liable to the extent that any such loss loss, claim, damage, expense or liability arises from and is based on or arises out of an untrue statement or omission or alleged untrue statement of a material factor omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Stockholder or an omission or alleged omission Controlling Person expressly for use in such registration statement. With respect 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 untrue statement or omission in the final prospectus has not been sent or given to such person at or prior information furnished in writing to the confirmation of sale to Company by such person if Selling Stockholder expressly for use in such underwriter was under an obligation to deliver registration statement, such final prospectus and failed to do so.
7.2. To the extent permitted by applicable law, each Selling Holder shall Stockholder will indemnify and hold harmless each underwriter, the Company, each of Company (including its directors, officers, employees and agents), and each other Selling Stockholder (including its partners (including partners of its officers who shall have signed the registration statementpartners and stockholders of such partners) and directors, officers, employees and agents of any of them), and each Person, if any, person who controls the Company any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, any other Selling Holder, any controlling Person of any such other Selling Holder from and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, insofar at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Stockholder for indemnification under this Section 5.6(a) in its capacity as such exceed the lesser of (i) that proportion of the total of such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any Violation, in each case indemnified against equal to the extent (and only to proportion of the extent) that total securities sold under such Violation occurs in reliance upon and in conformity with written information furnished registration statement which is being sold by such Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses Stockholder or (ii) the indemnifying party shall have failed to promptly assume the defense proceeds received by such Selling Stockholder from its sale of Registrable Shares under 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldregistration statement.
7.4. (b) If the indemnification required provided for in Section 5.6(a) above for any reason is held by this Section 7 from the indemnifying party is 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 in therein, then each indemnifying party under this Section 7:
(i) The indemnifying party5.6, 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 or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the other Selling Stockholders and the underwriters from the offering of the Registrable Shares 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 Stockholders and indemnified parties the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Stockholders 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 Stockholders 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 Shares. The relative fault of such indemnifying party the Company, the Selling Stockholders and indemnified parties the underwriters shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Company, such indemnifying party the Selling Stockholders or indemnified parties, the underwriters and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result of Company, the lossesSelling Stockholders, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7.4 5.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4In no event, an indemnifying party that is however, shall a Selling Holder will not Stockholder be required to contribute any amount under this Section 5.6(b) in excess of the amount by which lesser of (i) that proportion of the total price at of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total Registrable Shares sold under such registration statement which the Registrable Securities are being sold by such indemnifying party and distributed to Selling Stockholder or (ii) the public were offered to the public exceeds the amount proceeds received by such Selling Stockholder from its sale of any damages that Registrable Shares under such indemnifying party 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.
(c) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 5.6 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, payable as the same are incurred. The indemnification and contribution provided for in this Section 5.6 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 2 contracts
Sources: Stockholders' Agreement (Boron Lepore & Associates Inc), Stockholders' Agreement (Boron Lepore & Associates Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this AgreementSection 9:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 pursuant to a final non-appealable order (collectively a “"Violation”"):
(i) Any 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) The the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) Any any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 9.7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises is determined by a court of competent jurisdiction by a final non-appealable order to have solely arisen out of or is be based upon a Violation which occurs occurred in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 9.7(a) shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statementand employees, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 are determined by a court of competent jurisdiction by a final non-appealable order to have solely arisen out of or are be based upon any Violation, in each case to the extent (and only to the extent) a Violation that such Violation occurs occurred 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 7.2 9.7(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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 9.7(b) exceed the gross net proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 9.7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 79.7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 9.7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 79.7. Any reasonable fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 9.7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 79.7:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute 50 to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 9.7(a) and Section 7.29.7(b), any reasonable legal or other fees or expenses reasonably incurred by such 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 7.4 9.7(d) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission9.7(d)(i) above. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 9.7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 9.7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 9.7(d) above.
(f) The indemnification required by this Section 9.7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred. In the event that it shall be subsequently determined that the recipient of any such periodic payment shall not be entitled to indemnification hereunder, such recipient promptly shall repay such payments, together with interest thereon at the Agreed Rate from the date of original receipt to the date of repayment.
(g) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 9.7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Section 9, and otherwise.
Appears in 2 contracts
Sources: Warrant Agreement (Norand Corp /De/), Warrant Agreement (Norand Corp /De/)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 5.1 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 meaning of the Securities Act, ; and each officer, director, partner, partner and employee and affiliate of such Selling Holder and such controlling Person, ; against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, to the Exchange Act or other federal or state laws, insofar as extent 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) 5.1.1 Any untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus or final prospectus contained thereinProspectus, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) 5.1.2 The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) 5.1.3 Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned withheld or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense incurred by a Selling Holder (or any Person, if any, who controls such Selling Holder within the meaning of the Securities Act, or any officer, director, partner and employee of such Selling Holder and such controlling Person) to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written the Holder Information or other information furnished to the Company by the indemnified party or on behalf of such Selling Holder expressly for use 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 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 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 soRegistration Statement.
7.2. 5.2 To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, ; each of its directors, each of its officers who shall have signed the registration statement, Registration Statement; each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigationexpenses, incurred by such 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, to the Exchange Act or other federal or state laws, insofar as extent 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 the Holder Information or other information furnished to the Company by such or on behalf of that Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling HolderRegistration Statement.
7.3. 5.3 Promptly after receipt by an indemnified party under this Section 7 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 75, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 2 contracts
Sources: Registration Rights Agreement (Aspen Enterprises International Holdings LTD), Registration Rights Agreement (Aspen Enterprises International Holdings LTD)
Indemnification; Contribution. If (a) Incident to any registration of any Registrable Securities are included in a registration statement under pursuant to this Agreement:
7.1. To , the Company will indemnify, reimburse and hold harmless to the fullest extent permitted by applicable law, the Company shall indemnify each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and hold harmless each stockholders of any such partners), directors, officers, employees, representatives and agents of any of them) (each, a “Selling Holder”), and each Person, if any, person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities ActAct or Section 20 of the Exchange Act (each, a “Controlling Person”), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (including any investigative, legal and other expenses reasonably 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), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
on (i) Any any untrue statement or alleged untrue statement of a material fact contained in such registration statement, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or any documents filed under state securities or “blue sky” laws in connection therewith;
prospectus), (ii) The 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 it not misleading; or
, (iii) Any any violation or alleged violation by the Company of the Securities Act, the Exchange Act, Act or any applicable state securities statutory law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from statutory law, (iv) any failure to register or relating to or in connection with qualify the offer and sale of Registrable Securities pursuant in any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company (the undertaking of any underwriter chosen by the Company being attributed to this Agreementthe Company) will undertake such registration or qualification on the Selling Holder’s behalf (provided that in such instance the Company shall not be so liable if it has undertaken its best efforts to so register or qualify the Registrable Securities), or (v) any blue sky application or other document executed by the Company specifically for the purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof; provided, however, that the indemnification required by this Section 7.1 shall Company will not apply be liable to amounts paid in settlement of any the extent that such loss, claim, damage, expense or liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 from and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 untrue statement or omission of a material fact contained in such registration statement or alleged untrue statement of a material factor omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or an omission or alleged omission Controlling Person expressly for use in such registration statement. With respect 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 untrue statement or omission in the final prospectus has not been sent or given to such person at or prior information furnished in writing to the confirmation of sale to Company by such person if such underwriter 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 expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each underwriter, the Company, each of Company (including its directors, each of its officers who shall have signed the registration statementofficers, employees, representatives and agents), each Personother Holder (including its partners (including partners of partners and stockholders of such partners), if anydirectors, who controls the Company within the meaning officers, employees, representatives and agents of the Securities Actany of them, any other Selling Holder, any controlling and each Controlling Person of any such other Selling Holder of them), from and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, insofar at common law or otherwise as a direct result of such losses, claims, damages, liabilities and expenses arise out of untrue statement or are based upon any Violation, omission or alleged untrue statement or omission in each case the information furnished in writing to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished Company by such Selling Holder expressly for use in connection with such registration; providedregistration statement, provided that the obligation of the Selling Holder will be several and not joint and several. In no event, however, that (x) shall the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement liability of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant a Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity for indemnification under this Section 7.2 5(a) exceed the gross net proceeds from the applicable offering received by such Selling HolderHolder from its sale of Registrable Securities under such registration statement.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceedingb) 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required provided for in Section 5(a) above for any reason is held by this Section 7 from the indemnifying party is 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 in therein, then each indemnifying party under this Section 7:
(i) The indemnifying party5, 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 or expenses in such proportion as is appropriate to reflect (i) the relative benefits received by the Company, the Selling Holders and the underwriters from the offering of the Registrable Securities and (ii) the relative fault of the indemnifying party Company, the Selling Holders and indemnified parties the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand for registration under Section 3(a) or Section 3(b) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed solely 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 parties the underwriters shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Company, such indemnifying party the Selling Holders or indemnified parties, the underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities Company and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree each Selling Holder agrees that it would not be just and equitable if contribution pursuant to this Section 7.4 5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4In no event, an indemnifying party that is however, shall a Selling Holder will not be required to contribute any amount under this Section 5(b) in excess of the amount net proceeds received by which the total price at which the such Selling Holder from its sale of Registrable Securities sold by under such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionregistration statement. No Person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation. The Selling Holder’s obligations pursuant to this Section 5(b) shall be several in proportion to the amount of Registrable Securities registered by it and not joint and several.
(c) The amount required to be 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
Appears in 2 contracts
Sources: Registration Rights Agreement (First Mercury Financial Corp), Registration Rights Agreement (First Mercury Financial Corp)
Indemnification; Contribution. 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 the Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling the Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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 and selling or placement agents participating in the distribution, their officers, directors, agents and employees and each person who controls such 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 Holder provided, however that no such underwriter or agent shall be entitled to indemnification under this Agreement if such person shall have entered into a separate underwriting agency or indemnification agreement with the Company.
7.2. To the extent permitted by applicable law, each Selling the Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 the Company 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 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 the Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable SecuritiesHolder, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that subject to the rights of an indemnified party shall have the right to retain its own counsel, with 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 proceedingas hereinafter provided. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) owed by the indemnifying party hereunder shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether subject to refund if 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Holder under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dekalb Genetics Corp), Registration Rights Agreement (Monsanto Co)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) The Company agrees to indemnify and hold harmless, to the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder(i) Eligible Holder of Registrable Securities, (ii) each Person, if any, who Person that controls such Selling Holder (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) such Eligible Holder and (iii) the respective directors, officers, partners, employees, legal counsel, accountants and each officer, director, partner, employee and affiliate agents of such Selling Eligible Holder and such controlling PersonPerson (collectively, “Holder Indemnified Parties”) from and against any and all losses, claims, damages, liabilities and expenses (joint or several)expenses, including attorneys’ reasonable attorney’s fees and disbursements and reasonable expenses of investigationinvestigation (collectively, incurred “Losses”), caused by such party pursuant to any actual or threatened action, suit, proceeding or 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”):
(iA) Any untrue statement or alleged untrue statement of a material fact contained in such registration statementany Registration Statement, including any Prospectus or preliminary prospectus or final prospectus contained therein, Prospectus or any amendments amendment thereof or supplements supplement thereto or any documents filed under state securities Free Writing Prospectus or “blue sky” laws in connection therewith;
(ii) The any omission or alleged omission to state therein of a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; or
, or (iiiB) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 Company shall not apply be liable to amounts paid any Holder Indemnified Party for any Losses that are (x) caused by or contained in settlement any information furnished in writing to the Company by or on behalf of a Holder Indemnified Party or any underwriter expressly for use in any Registration Statement, Prospectus or preliminary Prospectus or amendment or supplement thereto or any Free Writing Prospectus or (y) caused by such Holder Indemnified Party’s or any underwriter’s failure to deliver a copy of the Registration Statement, Prospectus or preliminary Prospectus or amendment or supplement thereto or any Free Writing Prospectus after the Company has furnished such Holder Indemnified Party or such underwriter in a timely manner with a sufficient number of copies of the same. In connection with an Underwritten Offering, the Company shall indemnify such underwriters, each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and each of their respective directors, officers, partners and employees to the same extent as provided above with respect to the indemnification of the Eligible Holders of Registrable Securities.
(b) In connection with any Registration Statement in which a holder of Registrable Securities is participating, each such holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such lossRegistration Statement, claimProspectus or preliminary Prospectus or amendment or supplement thereto or any Free Writing Prospectus and shall indemnify and hold harmless, damageto the extent permitted by law, liability (i) the Company, (ii) each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) the Company, (iii) each other holder of Registrable Securities participating in any such offering and (iv) the respective directors, officers, partners, employees, legal counsel, accountants and agents of each of the Persons specified in the foregoing clauses (i) through (iii), from and against any and all Losses caused by any untrue or expense if alleged untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any Free Writing Prospectus or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such settlement untrue or alleged untrue statement or omission or alleged omission is effected without contained in any information or affidavit so furnished in writing by or on behalf of such holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or amendment or supplement thereto or such Free Writing Prospectus; provided that the consent obligation to indemnify shall be individual, not joint and several, for each holder and shall be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such Registration Statement. In connection with an Underwritten Offering by the Company or any holder of the Company’s securities other than an Eligible Holder, a holder of Registrable Securities participating therein shall indemnify such underwriters, each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and each of their respective directors, officers, partners and employees to the same extent as provided above with respect to the indemnification of the Company and the other holders.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which such Person seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the An indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 who is not entitled to indemnification hereunder). Any such indemnified party shall have the right to employ separate counsel in any such actionto, claim or proceeding and to participate in the defense thereofelects not to, but the fees and expenses of such counsel shall be 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, a 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 which 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 be obligated to pay 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 1) counsel (plus one (1) local counselcounsel in each applicable jurisdiction) at any time for all parties indemnified by such indemnified partiesindemnifying party with respect to such claim, unless in the reasonable judgment of such any 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 claim.
(d) The indemnified party shall be obligated have the right to pay employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such additional counsel shall be paid by the indemnified party unless (x) the indemnifying party agrees to pay the same, (y) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or counsels)(z) the indemnified party reasonably believes that the joint representation of the indemnified party and any other party in such proceeding (including the indemnifying party) would be inappropriate under applicable standards of professional conduct. In the case of clause (y) above and (z) above, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party. No indemnifying party shall be liable to an indemnified party for any settlement of any actionshall, proceeding or claim without the written consent of the indemnifying indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which consent indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (1) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (2) 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. The rights afforded to any indemnified party hereunder shall not be unreasonably withheldin addition to any rights that such indemnified party may have at common law, by separate agreement or otherwise.
7.4. (e) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party or any Person that controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) such indemnified party and the respective directors, officers, partners, employees, legal counsel, accountants and agents of such indemnified party and controlling Person and shall survive the transfer of Registrable Securities.
(f) If the indemnification required by this Section 7 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party hereunder in respect of any lossesLosses, claims, damages, liabilities or expenses referred to 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 lossesLosses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expensesLosses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation action in question has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction in question. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above Losses shall be deemed to include, subject to the limitations set forth in Section 7.1 7(a) and Section 7.27(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 7(f) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i7(f)(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 2 contracts
Sources: Registration Rights Agreement (DEX ONE Corp), Registration Rights Agreement (R H Donnelley Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) Parent shall, to the fullest extent permitted by applicable lawLaw, the Company shall indemnify and hold harmless each Selling HolderHolder of Registrable Securities, any Person who is a “controlling person” of such Holder or any of its subsidiaries within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Person, a “Controlling Person”), their respective direct and indirect general and limited partners, advisory board members, directors, officers, trustees, managers, members, employees, agents, Affiliates and shareholders, and each other agent, if any, who acts on behalf of or controls any such Selling Holder within the meaning or Controlling Person (each of the Securities Actforegoing, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling a “Covered Person, ”) against any and all losses, claims, actions, damages, liabilities (or actions or proceedings in respect thereof, whether or not such Covered Person is a party thereto) and expenses (including reasonable costs of investigation and legal expenses), joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Covered Person may become subject under the Securities Act, the Exchange Act Act, any state blue sky securities Laws, any equivalent non-U.S. securities Laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or 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 statementor incorporated by reference in any Registration Statement, including any Prospectus, preliminary Prospectus, free writing prospectus or final prospectus contained therein, (as defined in Rule 405 under the Securities Act or any amendments successor rule thereto) (a “Free Writing Prospectus”) or supplements any amendment thereof or supplement thereto or any documents filed under state securities document incorporated by reference therein or “blue sky” laws in connection therewith;
(ii) The any omission or alleged omission to state therein of a material fact required to be stated therein, therein or necessary to make the statements therein not misleading, and Parent shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability; orprovided, that Parent shall not be so liable in any such case to the extent that any loss, claim, action, damage, liability or expense arises out of or is based upon any such untrue statement or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, Free Writing Prospectus or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and in conformity with, written information prepared and furnished to Parent by such Covered Person expressly for use therein or arises out of or based upon such Covered Person’s failure to deliver a copy of the Prospectus or any amendments or supplements thereto to a purchaser (if so required) after Parent has furnished such Covered Person with a sufficient number of copies of the same. This indemnity shall be in addition to any liability Parent may otherwise have.
(iiib) Any violation In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall (severally and not jointly), to the fullest extent permitted by Law, indemnify and hold harmless Parent, its directors and officers, employees, agents and any Person who is a Controlling Person of Parent and any other selling Holder of Registrable Securities, its directors and officers, employees, agents and any Person who is a Controlling Person of such other selling Holder against any losses, claims, actions, damages, liabilities (or alleged violation by the Company actions or proceedings in respect thereof, whether or not such Covered Person is a party thereto) and expenses (including reasonable costs of investigation and legal expenses), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any applicable state blue sky securities law Laws, any equivalent non-U.S. securities Laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, Free Writing Prospectus or any rule amendment thereof or regulation promulgated under the Securities Act, the Exchange Act supplement thereto or any applicable state securities law arising from document incorporated by reference therein or relating (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but, in connection with the offer case of each of clauses (i) and (ii) solely to the extent that such untrue statement or alleged untrue statement, or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, Free Writing Prospectus or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and in conformity with, written information regarding such Holder prepared and furnished to Parent by such Holder expressly for use therein; provided, that the obligation to indemnify pursuant to this Section 11(a) shall be individual and several, not joint and several, for each participating Holder and shall not exceed an amount equal to the net proceeds (after deducting its portion of Selling Expenses) actually received by such Holder in the sale of Registrable Securities pursuant to this Agreementwhich such Registration Statement or Prospectus relates. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided, howeverthat any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification required hereunder is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have the right, exercisable by this Section 7.1 shall not apply giving written notice to amounts paid in settlement the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any such lossclaim or action, claimwith counsel reasonably acceptable to the indemnified party; provided, damagethat any indemnified party shall continue to be entitled to participate in the defense of such claim or action, liability with counsel of its own choice, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses subsequently incurred by the indemnified party in connection with such defense unless (A) the indemnifying party has agreed in writing to pay such fees, costs and expenses, (B) the indemnifying party has failed to assume the defense of such claim or expense if action within a reasonable time after receipt of notice of such settlement claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counsel reasonably acceptable to the indemnified party, (D) in the reasonable judgment of any such indemnified party, based upon advice of its counsel, a conflict of interest exists or may potentially exist between such indemnified party and the indemnifying party with respect to such claims or (E) the indemnified party has reasonably concluded that there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which are different from or additional to those available to the indemnifying party. Subject to the proviso in the foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions arising out of the same general circumstances or allegations, be liable for the fees, costs and expenses of more than one firm of attorneys (in addition to any local counsel) for all indemnified parties. The indemnifying party shall not have the right to settle a claim or action for which any indemnified party is effected entitled to indemnification hereunder without the consent of the Company indemnified party (which consent shall not to be unreasonably withheld, conditioned or delayed), nor and the indemnifying party shall not consent to the Company entry of any judgment or enter into or agree to any settlement relating to such claim or action unless in either case such judgment or settlement does not impose any admission of wrongdoing or injunctive or equitable relief binding on any indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff therein to such indemnified party of a full and final release from all liability in respect of such claim or action. The indemnifying party shall not be liable in any such case hereunder for any such loss, claim, damage, liability amount paid or expense payable or incurred pursuant to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 judgment entered 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 settlement effected 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 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 consent of an indemnified party unless the relevant Selling Holder of Registrable Securities, which indemnifying party has also consented to such judgment or settlement (such consent shall not to be unreasonably withheld, conditioned or delayed, and ).
(yd) If the indemnification provided for in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received 11 is held by such Selling Holder.
7.3. Promptly after receipt a court of competent jurisdiction to be unavailable to, or unenforceable by, or is for any reason insufficient to hold harmless as contemplated by this Section 11 an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense referred to in this Section 7:
(i) The herein, then the applicable indemnifying party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, in connection with the actions statements or omissions which resulted in such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of such the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 by the indemnifying party or by the indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 hereto were determined by pro rata allocation or by any other method of or allocation which that does not take into account the equitable considerations referred to in this Section 7.4(i11(d). Notwithstanding In no event shall the provisions amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 7.4, 11(d) exceed an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which net proceeds (after deducting its portion of Selling Expenses) actually received by such Holder in the sale of Registrable Securities sold by that gives rise to such indemnifying party and distributed obligation to the public were offered to the public contribute exceeds the amount of any damages that which 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 indemnified party guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The provisions of this Section 11 shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party and shall survive the Transfer of any Registrable Securities by any Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Td Ameritrade Holding Corp), Registration Rights Agreement (Td Ameritrade Holding Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 5.1 To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderInvestor, each Person, if any, who controls such Selling Holder Investor within the meaning of the Securities Act, and each officer, director, manager, partner, and employee and affiliate of such Selling Holder Investor and such controlling Person, against any and all losses, claims, damages, liabilities and reasonable expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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”):
(ia) 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(iib) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iiic) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. 5.2 To the extent permitted by applicable law, each Selling Holder Investor shall indemnify and hold harmless the Company, each of its directors, directors and each of its officers who shall have signed the registration statement, and each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling HolderInvestor, any controlling Person of any such other Selling Holder Investor and each officer, director, partner, and employee of such other Selling Holder Investor 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 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 Investor expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 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 consent of the relevant Selling Holder Investor of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 5.2 exceed the gross proceeds from the applicable offering received by such Selling HolderInvestor.
7.3. 5.3 Promptly after receipt by an indemnified party under this Section 7 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 75, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 5 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 75. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but and the fees and expenses of such counsel shall be the expenses of such indemnified the indemnifying party unless if (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) representation of such indemnified party by the named parties counsel retained by the indemnifying party would be inappropriate due to any such action, claim actual or proceeding (including any impleaded parties) include both potential differing interests between such indemnified party and the indemnifying party, and any other party represented by such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it which 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 proceeding (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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 5.4 If the indemnification required by this Section 7 5 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 75:
(ia) 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 5.1 and Section 7.25.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 5.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i5.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 5, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 5 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 5.4.
5.6 The obligations of the Company and the Selling Investors of Registrable Securities under this Section 5 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 2 contracts
Sources: Investment Agreement (Urstadt Biddle Properties Inc), Registration Rights Agreement (Urstadt Biddle Properties Inc)
Indemnification; Contribution. 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 meaning of the Securities Act, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewith;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities liabilities, or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 2 contracts
Sources: Exchange Agreement (First Choice Healthcare Solutions, Inc.), Exchange Agreement (First Choice Healthcare Solutions, Inc.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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”"):
(ia) Any untrue statement by the Company or alleged untrue statement of a material fact about the Company contained in such a registration statementstatement filed in accordance herewith, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(iib) The omission or alleged omission to state therein a material fact about the Company required to be stated therein, or necessary to make the statements therein not misleading; or
(iiic) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 6 shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. 6.2 To the extent permitted by applicable law, each Selling Holder shall (severally but not jointly) indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 7.2 6.2 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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 6.2 exceed the gross net proceeds from the applicable offering received by such Selling Holder.
7.3. 6.3 Promptly after receipt by an indemnified party under this Section 7 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 76, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, however that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. 6 Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 6.4 If the indemnification required by this Section 7 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7:this
(ia) 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 6.1 and Section 7.26.2 (including the limitation in Section 6.2 that in no event shall a Selling Holder be liable for any amount in excess of the net proceeds from the applicable offering received by such Selling Holder), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 6.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i6.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6 The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (K2 Vc LTD), Registration Rights Agreement (Hencie International Inc)
Indemnification; Contribution. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and reasonable expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 reasonable 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed)Company, nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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 the Selling Holders against claims asserted by underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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; provided, however, that such notice is accompanied by an appropriate undertaking of the indemnified party (regardless of whether to reimburse the indemnifying party to the extent it is ultimately determined that an indemnified such party is not entitled to indemnification hereunder)indemnification. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 8 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sonera Corp), Registration Rights Agreement (Voicestream Wireless Holding Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) Parent shall, to the fullest extent permitted by applicable lawLaw, the Company shall indemnify and hold harmless each Selling HolderHolder of Registrable Securities, any Person who is a “controlling person” of such Holder or any of its subsidiaries within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Person, a “Controlling Person”), their respective direct and indirect general and limited partners, advisory board members, directors, officers, trustees, managers, members, employees, agents, Affiliates and shareholders, and each other agent, if any, who acts on behalf of or controls any such Selling Holder within the meaning or Controlling Person (each of the Securities Actforegoing, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling a “Covered Person, ”) against any and all losses, claims, actions, damages, liabilities (or actions or proceedings in respect thereof, whether or not such Covered Person is a party thereto) and expenses (including reasonable costs of investigation and legal expenses), joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Covered Person may become subject under the Securities Act, the Exchange Act Act, any state blue sky securities Laws, any equivalent non-U.S. securities Laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or 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 statementor incorporated by reference in any Registration Statement, including any Prospectus, preliminary Prospectus, free writing prospectus or final prospectus contained therein, (as defined in Rule 405 under the Securities Act or any amendments successor rule thereto) (a “Free Writing Prospectus”) or supplements any amendment thereof or supplement thereto or any documents filed under state securities document incorporated by reference therein or “blue sky” laws in connection therewith;
(ii) The any omission or alleged omission to state therein of a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; or, and Parent shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability; provided, that Parent shall not be so liable in any such case to the extent that any loss, claim, action, damage, liability or expense arises out of or is based upon any such untrue statement or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, Free Writing Prospectus or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and in conformity with, written information prepared and furnished to Parent by such Covered Person expressly for use therein or arises out of or based upon such Covered Person’s failure to deliver a copy of the Prospectus or any amendments or supplements thereto to a purchaser (if so required) after Parent has furnished such Covered Person with a sufficient number of copies of the same. This indemnity shall be in addition to any liability Parent may otherwise have.
(iiib) Any violation In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall (severally and not jointly), to the fullest extent permitted by Law, indemnify and hold harmless Parent, its directors and officers, employees, agents and any Person who is a Controlling Person of Parent and any other selling Holder of Registrable Securities, its directors and officers, employees, agents and any Person who is a Controlling Person of such other selling Holder against any losses, claims, actions, damages, liabilities (or alleged violation by the Company actions or proceedings in respect thereof, whether or not such Covered Person is a party thereto) and expenses (including reasonable costs of investigation and legal expenses), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any applicable state blue sky securities law Laws, any equivalent non-U.S. securities Laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, Free Writing Prospectus or any rule amendment thereof or regulation promulgated under the Securities Act, the Exchange Act supplement thereto or any applicable state securities law arising from document incorporated by reference therein or relating (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but, in connection with the offer case of each of clauses (i) and (ii) solely to the extent that such untrue statement or alleged untrue statement, or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, Free Writing Prospectus or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and in conformity with, written information regarding such Holder prepared and furnished to Parent by such Holder expressly for use therein; provided, that the obligation to indemnify pursuant to this Section 11(a) shall be individual and several, not joint and several, for each participating Holder and shall not exceed an amount equal to the net proceeds (after deducting its portion of Selling Expenses) actually received by such Holder in the sale of Registrable Securities pursuant to this Agreement; which such Registration Statement or Prospectus relates. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided, howeverthat any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification required hereunder is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have the right, exercisable by this Section 7.1 shall not apply giving written notice to amounts paid in settlement the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any such lossclaim or action, claimwith counsel reasonably acceptable to the indemnified party; provided, damagethat any indemnified party shall continue to be entitled to participate in the defense of such claim or action, liability with counsel of its own choice, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses subsequently incurred by the indemnified party in connection with such defense unless (A) the indemnifying party has agreed in writing to pay such fees, costs and expenses, (B) the indemnifying party has failed to assume the defense of such claim or expense if action within a reasonable time after receipt of notice of such settlement claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counsel reasonably acceptable to the indemnified party, (D) in the reasonable judgment of any such indemnified party, based upon advice of its counsel, a conflict of interest exists or may potentially exist between such indemnified party and the indemnifying party with respect to such claims or (E) the indemnified party has reasonably concluded that there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which are different from or additional to those available to the indemnifying party. Subject to the proviso in the foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions arising out of the same general circumstances or allegations, be liable for the fees, costs and expenses of more than one firm of attorneys (in addition to any local counsel) for all indemnified parties. The indemnifying party shall not have the right to settle a claim or action for which any indemnified party is effected entitled to indemnification hereunder without the consent of the Company indemnified party (which consent shall not to be unreasonably withheld, conditioned or delayed), nor and the indemnifying party shall not consent to the Company entry of any judgment or enter into or agree to any settlement relating to such claim or action unless in either case such judgment or settlement does not impose any admission of wrongdoing or injunctive or equitable relief binding on any indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff therein to such indemnified party of a full and final release from all liability in respect of such claim or action. The indemnifying party shall not be liable in any such case hereunder for any such loss, claim, damage, liability amount paid or expense payable or incurred pursuant to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 judgment entered 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 settlement effected 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 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 consent of an indemnified party unless the relevant Selling Holder of Registrable Securities, which indemnifying party has also consented to such judgment or settlement (such consent shall not to be unreasonably withheld, conditioned or delayed, and ).
(yd) If the indemnification provided for in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received 11 is held by such Selling Holder.
7.3. Promptly after receipt a court of competent jurisdiction to be unavailable to, or unenforceable by, or is for any reason insufficient to hold harmless as contemplated by this Section 11 an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense referred to in this Section 7:
(i) The herein, then the applicable indemnifying party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, in connection with the actions statements or omissions which resulted in such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of such the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 by the indemnifying party or by the indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 hereto were determined by pro rata allocation or by any other method of or allocation which that does not take into account the equitable considerations referred to in this Section 7.4(i11(d). Notwithstanding In no event shall the provisions amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 7.4, 11(d) exceed an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which net proceeds (after deducting its portion of Selling Expenses) actually received by such Holder in the sale of Registrable Securities sold by that gives rise to such indemnifying party and distributed obligation to the public were offered to the public contribute exceeds the amount of any damages that which 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 indemnified party guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The provisions of this Section 11 shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party and shall survive the Transfer of any Registrable Securities by any Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Schwab Charles Corp), Merger Agreement
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the Company The Secured Parties shall indemnify jointly and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewith;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall severally indemnify and hold harmless the CompanyAdministrative Agent, each of its directors, each of its officers who shall have signed the registration statementofficers, each Personshareholders, if anymembers, who controls the Company within the meaning of the Securities Actpartners, employees and agents (and any other Selling Holder, any controlling Person persons with a functionally equivalent role of any a person holding such other Selling Holder and each officer, director, partner, and employee titles notwithstanding a lack of such title or any other Selling Holder title) (individually, an “Indemnified Party”; collectively, “Indemnified Parties”), from and such controlling Person, against any and all liabilities, obligations, losses, claims, damages, liabilities and penalties, actions, judgments, suits, costs, expenses or disbursements (joint and several), including attorneys’ fees and disbursements and expenses reasonable legal fees) of investigationany kind or nature whatsoever (“Loss”) which may be imposed on, incurred by such party pursuant to any actual or threatened action, suit, proceeding asserted against the Indemnified Party in performing the Administrative Agent’s duties hereunder or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act Agreement 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 Transaction Document or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim way relating to or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 Agreement 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 Transaction Document. The Secured Parties shall reimburse the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party Administrative Agent for any settlement Loss as incurred but in any event within ten (10) business days of the delivery by the Administrative Agent to the Secured Parties of a written notice setting forth the nature and amount of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4such Loss. If the indemnification required by under this Section 7 from the indemnifying party 6 is unavailable to an indemnified party hereunder in respect of Indemnified Party or insufficient to hold an Indemnified Party harmless for any lossesLoss, claims, damages, liabilities or expenses referred to in this Section 7:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, then each Secured Party shall contribute to the amount paid or payable by such indemnified party as a result Indemnified Party in proportion to the Secured Parties’ initially purchased respective stated value of such losses, claims, damages, liabilities or expenses Series B Preferred Stock. The indemnity and contribution agreements contained in such proportion as is appropriate this Section are in addition to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerationsliability that the Secured Parties may have to the Indemnified Parties under the Agreement or otherwise. The relative fault of Prior to taking any action hereunder or under the Agreement as Administrative Agent, the Administrative Agent may require each Secured Party to deposit with it sufficient sums as it determines in good faith is necessary to protect the Administrative Agent for costs and expenses associated with taking such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, action and the parties’ relative intent, knowledge, access Administrative Agent may delay taking any such action until such time as it shall have received such sums and shall have no liability hereunder to information and opportunity to correct or prevent any party for any such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceedingdelay.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 2 contracts
Sources: Security Agreement (Global Diversified Industries Inc), Security Agreement (Global Diversified Industries Inc)
Indemnification; Contribution. If (a) Incident to any Registrable Securities are included in a registration statement under referred to in this Agreement:
7.1. To the extent permitted by Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each Person, if any, person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (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), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
on (i) Any any untrue statement or alleged untrue statement of a material fact contained in such registration statement, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or any documents filed under state securities or “blue sky” laws in connection therewith;
prospectus), (ii) The 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 it not misleading; or
, or (iii) Any violation or alleged any violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or blue sky laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use thereunder in connection with such registration; provided, furtherhowever, that the indemnity agreement contained in this Section 7 Company shall not apply to any underwriter be liable to the extent that any such loss loss, claim, damage, expense or liability arises from and is based on or arises out of an untrue statement or omission or alleged untrue statement of a material factor omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or an omission or alleged omission Controlling Person expressly for use in such registration statement. With respect 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 untrue statement or omission in the final prospectus has not been sent or given to such person at or prior information furnished to the confirmation of sale to Company by such person if Selling Holder expressly for use in such underwriter was under an obligation to deliver registration statement, 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 each underwriter, the Company, each of Company (including its directors, each of its officers who shall have signed the registration statementofficers, employees and agents), each Personother Holder (including its partners (including partners of partners and stockholders of such partners) and directors, if anyofficers, employees and agents of any of them) whose securities are so registered, and each person who controls the Company any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, any other Selling Holder, any controlling Person of any such other Selling Holder from and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, insofar at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages, damages or liabilities and expenses arise out indemnified against equal to that proportion of or are based upon any Violation, in each case to the extent (and only to the extent) that total securities sold under such Violation occurs in reliance upon and in conformity with written information furnished registration statement which is being sold by such Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the defense of case may be) under 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldregistration statement.
7.4. (b) If the indemnification required provided for in Section 9.6(a) above for any reason is held by this Section 7 from the indemnifying party is 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 in therein, then each indemnifying party under this Section 7:
(i) The indemnifying party9.6, 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 or 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 and Founder Securities, as applicable, 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 parties the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, 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 and Founder Securities, as applicable. The relative fault of such indemnifying party the Company, the Selling Holders and indemnified parties the underwriters shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Company, such indemnifying party the Selling Holders or indemnified parties, the underwriters and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceedingomission.
(iic) The parties hereto Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7.4 9.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4In no event, an indemnifying party that is however, shall a Selling Holder will not be required to contribute any amount under this Section 9.6(b) in excess of the amount by which lesser of (i) that proportion of the total price at of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which the Registrable Securities is being sold by such indemnifying party and distributed to Selling Holder or (ii) the public were offered to proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the public exceeds the amount of any damages that case may be, under such indemnifying party 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.
(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 9.6 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, payable as the same are incurred. The indemnification and contribution provided for this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.
Appears in 2 contracts
Sources: Stockholders' Agreement (Pathnet Telecommunications Inc), Stockholders' Agreement (Pathnet Telecommunications Inc)
Indemnification; Contribution. If any Registrable Securities are included in 8.1 With respect to a registration statement under this Agreement:
7.1. To Demand Registration Statement, to the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls each such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of each 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 disbursements and expenses of investigationinvestigation (collectively, “Losses”), incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 Losses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
(ia) Any 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(iib) The 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 light of the circumstances under which they are made, not misleading; or
(iiic) Any any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable federal or state securities law or any rule or regulation promulgated under applicable to the Securities Act, the Exchange Act or any applicable state securities law arising from or Company relating to any action or inaction by the Company in connection with the offer and sale of Registrable Securities pursuant to this Agreementregistration effected by the registration statement; provided, however, that the indemnification required by this Section 7.1 8.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense Loss if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense Loss to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in any indemnification required by this Section 7 8.1 shall not apply to any underwriter a Holder to the extent that any such loss Loss is based on or arises out of (i) sales of Registrable Securities during any Suspension Period or (ii) 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 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 been delivered to each such Holder but has not been sent or given by each such Holder 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 soPerson alleging damage.
7.2. 8.2 To the extent permitted by applicable law, each Selling such Holder shall shall, severally and not jointly, indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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, Act against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, Losses incurred by the Company or such party Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which the Company or 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 Losses 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 arises out of or is based upon and in conformity with written information furnished by or on behalf of such Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 8.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense Loss if such settlement is effected without the consent of the relevant Selling Holder of Registrable Securitiessuch Holder, (which consent shall not be unreasonably withheld, conditioned or delayed), and (y) in no event shall the amount of any indemnity obligation under this Section 7.2 8.2 exceed the gross net proceeds from the applicable offering received by such Selling Participating Holder.
7.3. (a) Promptly after receipt by an indemnified party under this Section 7 8 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 78, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingthereof. The failure to deliver written notice to the indemnifying party within a reasonable time as soon as practicable following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 8 to the extent of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 78. Any fees and expenses 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 incurred (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). .
(b) Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 (iiiii) 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 8.4 If the indemnification required by this Section 7 8 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Losses referred to in this Section 78:
(ia) 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 or expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expensesLosses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 8.1 and Section 7.28.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 8.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i8.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f12(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
8.5 If indemnification is available under this Section 8, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 8 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 8.4.
8.6 The obligations of the Company and any Holder under this Section 8 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 2 contracts
Sources: License, Development and Cooperation Agreement (Forest Laboratories Inc), License, Development and Cooperation Agreement (Genaissance Pharmaceuticals Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.16.1. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 untrue statement or alleged untrue statement of a material fact contained in such a registration statementstatement filed in accordance herewith, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 6 shall not apply to any underwriter 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, 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.
7.26.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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)expenses, including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 7.2 6.2 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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.36.3. Promptly after receipt by an indemnified party under this Section 7 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 76, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 76. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.46.4. If the indemnification required by this Section 7 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 76:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 6.1 and Section 7.26.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 6.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i6.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 2 contracts
Sources: Registration Rights Agreement (Montgomery Michael E), Registration Rights Agreement (Trek Resources Inc)
Indemnification; Contribution. If any Registrable Securities are included in (a) For the purposes of this Agreement, an “indemnified party” shall mean a registration statement Person entitled to indemnification under this Agreement:
7.1. To Section 8, as well as such Person’s officers, directors (including with respect to the extent permitted by applicable lawCompany, any Person named in the Company shall indemnify Registration Statement with his or her consent as becoming a director in the future), employees, members, managers, partners, affiliates, agents and hold harmless each Selling Holderrepresentatives, and each Person, if any, who controls such Selling Holder Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, .
(b) Each of the Dealer Manager and each officer, director, partner, employee the Company shall indemnify and affiliate of such Selling Holder and such controlling Person, hold harmless the Wholesaler against any and all losses, claims, damages, costs, expenses, liabilities (including any investigatory, legal and other expenses (joint incurred in connection with, and any amount paid in settlement of, any action, suit or severalproceeding or any claim asserted, other than by FINRA in connection with Section 8(d)), including attorneys’ fees and disbursements actions to which the Wholesaler and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationits indemnified parties, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or Act, any other federal or state lawsstatute, law or regulation, at common law or otherwise, in connection with or related to the Public Offering or this Agreement, insofar as such losses, claims, damages, costs, expenses or liabilities and expenses or actions do not arise out of or are not based upon any action or omission of the following statementsWholesaler constituting negligence, omissions misconduct or violations (collectively a “Violation”):violation of this Agreement or applicable laws or regulations.
(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 any documents filed under state securities or “blue sky” laws in connection therewith;
(iic) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder Wholesaler shall indemnify and hold harmless the Company, each of its directors, the Company and the Dealer Manager to the same extent as the foregoing indemnity from each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within and 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 severalDealer Manager set forth in Section 8(b), including attorneys’ fees and disbursements and expenses of investigation, incurred by such 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, but only insofar as such losses, claims, damages, costs, expenses, or liabilities and expenses or actions arise out of or are based upon any Violationaction or omission of the Wholesaler constituting negligence, misconduct or violation of this Agreement or applicable laws or regulations.
(d) If, after the Public Offering has terminated, FINRA alleges violations of the compensation and expense provisions of FINRA Rule 2310(b)(4)(B)(i) and/or FINRA Rule 2310(b)(4)(B)(ii) (the “Compensation Rules”) against the Dealer Manager in its capacity as dealer manager of the Public Offering, then the Wholesaler shall enter into a joint defense agreement with the Dealer Manager to defend the charges of excessive compensation. Further, in each case the event of a full and final settlement, or a final disciplinary decision (i.e., where all available appeals have been taken or the time to notice an appeal has passed) wherein the Compensation Rules were found to have been violated by the Dealer Manager, the Wholesaler shall contribute to the extent (and only Company any amounts that FINRA has determined should be repaid by the Dealer Manager to the extent) that Company in connection with the FINRA action. In addition, Wholesaler shall reimburse the Dealer Manager for any fines or penalties assessed against it by, and paid to, FINRA as a result of such Violation occurs in reliance upon action and in conformity with written information furnished by such Selling Holder expressly shall reimburse the Dealer Manager for use the reasonable legal fees and costs of defense the Dealer Manager incurred in connection with such registration; providedaction. For the avoidance of doubt, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent Dealer Manager shall not be unreasonably withheld, conditioned responsible for any amounts required to be contributed by the Wholesaler to the Company or delayed, and (y) in no event shall otherwise by the amount of any indemnity under Wholesaler pursuant to this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder8(d).
7.3. Promptly (e) Any party which proposes to assert the right to be indemnified under Section 8(b) or 8(c) will, promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation suit or threat thereof proceeding against such party in respect of which a claim is to be made in writing for which such against an indemnified party may make a claim under this Section 78(b) or 8(c), notify each such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof of such action, suit or proceeding, enclosing a copy of all papers served, and the failure so to notify such indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, suit or proceeding shall relieve such indemnifying party of it from any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that which it may have to any indemnified party under Section 8(b) or 8(c) to the extent, and only to the extent, that such failure was prejudicial to the indemnifying party. In no event shall any such failure relieve an indemnifying party of any liability which it may have to an indemnified party otherwise than pursuant to this under Section 78(b) or 8(c). Any fees and expenses incurred by the In case any such action, suit or proceeding shall be brought against any indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) party shall notify the indemnifying part of the commencement thereof, the indemnifying party shall be paid entitled to participate therein, and, if it shall wish, individually or jointly with any other indemnifying party, to assume (or have such other party assume) the defense thereof, with counsel reasonably satisfactory to such indemnified party, as incurredand, within thirty after notice from the indemnifying party to such indemnified party of its election (30or the election of such other party) days so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses, other than reasonable costs of written notice thereof to investigation requested by the indemnifying party (regardless of whether it is ultimately determined that an or such other party), subsequently incurred by such indemnified party is not entitled to indemnification hereunderin connection with the defense thereof, except as provided in Section 8(f). Any such .
(f) The indemnified party shall have the right to employ separate its counsel in any such action, claim or proceeding and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless unless:
(i) the employment by counsel by such indemnified party has been authorized by the indemnifying party has agreed to pay (or such fees and expenses or other indemnifying party as may have assumed the defense of the action in question);
(ii) the indemnified party reasonably shall have concluded that there may be a conflict of interest between the indemnifying party shall have failed to promptly assume (or such other party) and the indemnified party in the conduct of the defense of such action, claim or proceeding or action (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 in which are different from or in addition to those available to case the indemnifying party and that the assertion of or 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 other party shall not have the right to direct the defense of such action on behalf of the indemnified party); or
(iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action, claim or proceeding on behalf in each 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 which cases the reasonable fees and expenses of more than one separate firm counsel shall be at the expense of attorneys the indemnifying party.
(together with appropriate local counselg) 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 An indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels). No indemnifying party shall not be liable to an indemnified party for any settlement of any action, suit or proceeding or claim effected without the its prior written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceedingconsent.
(iih) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the exculpation provisions of this Section 7.4, an indemnifying party that is a Selling Holder will the Company’s Articles of Incorporation and Bylaws shall not be required to contribute relieve the Dealer Manager or any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed its principals from any liability they may have or incur to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentationCompany under this Agreement.
Appears in 2 contracts
Sources: Wholesaling Agreement, Wholesaling Agreement (CIM Commercial Trust Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) The Company shall, to the fullest extent permitted by applicable lawLaw, the Company shall indemnify and hold harmless each Selling HolderS▇▇▇▇ Family Stockholder, any Person who is a “controlling person” of such Stockholder or any of its subsidiaries within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Person, a “Controlling Person”), their respective direct and indirect general and limited partners, advisory board members, directors, officers, trustees, managers, members, employees, agents, Affiliates and shareholders, and each other agent, if any, who acts on behalf of or controls any such Selling Holder within the meaning Stockholder or Controlling Person (each of the Securities Actforegoing, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling a “Covered Person, ”) against any and all losses, claims, actions, damages, liabilities (or actions or proceedings in respect thereof, whether or not such Covered Person is a party thereto) and expenses (including reasonable costs of investigation and legal expenses), joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Covered Person may become subject under the Securities Act, the Exchange Act Act, any state blue sky securities Laws, any equivalent non-U.S. securities Laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or 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 statementor incorporated by reference in any Registration Statement, including any Prospectus, preliminary Prospectus, free writing prospectus or final prospectus contained therein, (as defined in Rule 405 under the Securities Act or any amendments successor rule thereto) (a “Free Writing Prospectus”) or supplements any amendment thereof or supplement thereto or any documents filed under state securities document incorporated by reference therein or “blue sky” laws in connection therewith;
(ii) The any omission or alleged omission to state therein of a material fact required to be stated therein, therein or necessary to make the statements therein not misleading, and the Company shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability; orprovided, that the Company shall not be so liable in any such case to the extent that any loss, claim, action, damage, liability or expense arises out of or is based upon any such untrue statement or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, Free Writing Prospectus or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use therein or arises out of or based upon such Covered Person’s failure to deliver a copy of the Prospectus or any amendments or supplements thereto to a purchaser (if so required) after the Company has furnished such Covered Person with a sufficient number of copies of the same. This indemnity shall be in addition to any liability the Company may otherwise have.
(iiib) Any violation In connection with any registration in which a Stockholder is participating, each such Stockholder shall (severally and not jointly), to the fullest extent permitted by Law, indemnify and hold harmless the Company, any Person who is a Controlling Person of the Company, their respective direct and indirect general and limited partners, advisory board members, directors, officers, trustees, managers, members, employees, agents, Affiliates and shareholders, and each other agent, if any, who acts on behalf of or alleged violation by controls the Company or Controlling Person (each of the foregoing, a “Company Covered Person”) against any losses, claims, actions, damages, liabilities (or actions or proceedings in respect thereof, whether or not such Company Covered Person is a party thereto) and expenses (including reasonable costs of investigation and legal expenses), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any applicable state blue sky securities law Laws, any equivalent non-U.S. securities Laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, Free Writing Prospectus or any rule amendment thereof or regulation promulgated under the Securities Act, the Exchange Act supplement thereto or any applicable state securities law arising from document incorporated by reference therein or relating (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but, in connection with the offer case of each of clauses (i) and (ii) solely to the extent that such untrue statement or alleged untrue statement, or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, Free Writing Prospectus or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and in conformity with, written information regarding such Stockholder prepared and furnished to the Company by such Stockholder expressly for use therein; provided, that the obligation to indemnify pursuant to this Section 4.10(b) shall be individual and several, not joint and several, for each participating Stockholder and shall not exceed an amount equal to the net proceeds (after deducting its portion of Selling Expenses) actually received by such Stockholder in the sale of Registrable Securities pursuant to this Agreementwhich such Registration Statement or Prospectus relates; provided, howeverfurther, that notwithstanding anything in this Agreement to the contrary, in no event shall the Stockholders or any other Covered Person be deemed a Company Covered Person. This indemnity shall be in addition to any liability which such Stockholder may otherwise have.
(c) Any Person entitled to indemnification required by this Section 7.1 hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided, that any failure or delay to so notify the indemnifying party shall not apply relieve the indemnifying party of its obligations hereunder, except to amounts paid the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification hereunder is brought against an indemnified party, the indemnifying party shall be entitled to participate in settlement and shall have the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any such lossclaim or action, claimwith counsel reasonably acceptable to the indemnified party; provided, damagethat any indemnified party shall continue to be entitled to participate in the defense of such claim or action, liability with counsel of its own choice, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses subsequently incurred by the indemnified party in connection with such defense unless (A) the indemnifying party has agreed in writing to pay such fees, costs and expenses, (B) the indemnifying party has failed to assume the defense of such claim or expense if action within a reasonable time after receipt of notice of such settlement claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counsel reasonably acceptable to the indemnified party, (D) in the reasonable judgment of any such indemnified party, based upon advice of its counsel, a conflict of interest exists or may potentially exist between such indemnified party and the indemnifying party with respect to such claims or (E) the indemnified party has reasonably concluded that there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which are different from or additional to those available to the indemnifying party. Subject to the proviso in the foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions arising out of the same general circumstances or allegations, be liable for the fees, costs and expenses of more than one firm of attorneys (in addition to any local counsel) for all indemnified parties. The indemnifying party shall not have the right to settle a claim or action for which any indemnified party is effected entitled to indemnification hereunder without the consent of the Company indemnified party (which consent shall not to be unreasonably withheld, conditioned or delayed), nor and the indemnifying party shall not consent to the Company entry of any judgment or enter into or agree to any settlement relating to such claim or action unless in either case such judgment or settlement does not impose any admission of wrongdoing or injunctive or equitable relief binding on any indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff therein to such indemnified party of a full and final release from all liability in respect of such claim or action. The indemnifying party shall not be liable in any such case hereunder for any such loss, claim, damage, liability amount paid or expense payable or incurred pursuant to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 judgment entered 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 settlement effected 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 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 consent of an indemnified party unless the relevant Selling Holder of Registrable Securities, which indemnifying party has also consented to such judgment or settlement (such consent shall not to be unreasonably withheld, conditioned or delayed, and ).
(yd) If the indemnification provided for in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received 4.10 is held by such Selling Holder.
7.3. Promptly after receipt a court of competent jurisdiction to be unavailable to, or unenforceable by, or is for any reason insufficient to hold harmless as contemplated by this Section 4.10 an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense referred to in this Section 7:
(i) The herein, then the applicable indemnifying party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, in connection with the actions statements or omissions which resulted in such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of such the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 by the indemnifying party or by the indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto Parties agree that it would not be just and equitable if contribution pursuant to this Section 7.4 hereto were determined by pro rata allocation or by any other method of or allocation which that does not take into account the equitable considerations referred to in this Section 7.4(i4.10(d). Notwithstanding In no event shall the provisions of amount which a Stockholder may be obligated to contribute pursuant to this Section 7.4, 4.10(d) exceed an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which net proceeds (after deducting its portion of Selling Expenses) actually received by such Stockholder in the sale of Registrable Securities sold by that gives rise to such indemnifying party and distributed obligation to the public were offered to the public contribute exceeds the amount of any damages that which 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 indemnified party guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The provisions of this Section 4.10 shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of any Registrable Securities by any Stockholder.
Appears in 2 contracts
Sources: Stockholders' Agreement (First Interstate Bancsystem Inc), Stockholders Agreement (First Interstate Bancsystem Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. a. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each Personperson, if any, who controls such Selling Holder Holders within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder Holders and such controlling Personperson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons 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 untrue statement or alleged untrue statement of a material fact contained in such registration statementRegistration Statement, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 4(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent (and only to the extent) that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. b. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Personperson, if any, who controls the Company 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, 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 expenses of investigation, incurred by such 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 any 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 7.2 4(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 Registrable Securities, (which consent shall not be unreasonably withheld); and, conditioned or delayed, and (y) provided further that -------- ------- in no event shall the amount of any indemnity under this Section 7.2 4(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. c. Promptly after receipt by an indemnified party under this Section 7 4 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 74, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually reasonably satisfactory to the parties, acting reasonablyindemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingat its own expense (except as specifically provided below). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 7 4 except, if and to the extent that the indemnifying party is actually prejudiced thereby, but in no event shall not it relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 74. Any fees and expenses 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 sixty (3060) 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, but in such event such amounts shall be immediately refunded). Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. d. If the indemnification required by this Section 7 4 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 74:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation; provided however, that in no event shall the obligation of any indemnifying party to contribute under this clause (i) exceed the amount that such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for in Section 4(a) had been available under the circumstances. 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 7.1 4(a) and Section 7.2(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 4(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account the equitable considerations referred to in Section 7.4(i4(d)(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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 person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
e. The obligations of the Company and the Holders under this Section 4 shall survive the completion of any offering of Common Stock pursuant to a registration statement.
Appears in 2 contracts
Sources: Securities Purchase and Subscription Agreement (Careside Inc), Securities Purchase and Subscription Agreement (Careside Inc)
Indemnification; Contribution. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and reasonable expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 reasonable expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):"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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; providedPROVIDED, howeverHOWEVER, that the indemnification required by this Section 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed)Company, nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; providedPROVIDED, furtherFURTHER, that the indemnity agreement contained in this Section SECTION 7 shall not apply to any underwriter 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, 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 the Selling Holders against claims asserted by underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 expenses of investigation, incurred by such 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 about such Selling Holder furnished by such Selling Holder expressly for use in connection with such registration; providedPROVIDED, howeverHOWEVER, that (xi) the indemnification required by this Section SECTION 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (yii) in no event shall the amount of any indemnity under this Section SECTION 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section SECTION 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section SECTION 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section SECTION 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section SECTION 7. Any fees and expenses 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; PROVIDED, HOWEVER, that such notice is accompanied by an appropriate undertaking of the indemnified party (regardless of whether to reimburse the indemnifying party to the extent it is ultimately determined that an indemnified such party is not entitled to indemnification hereunder)indemnification. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section SECTION 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 SECTION 7.1 and Section SECTION 7.2, any legal or other fees or expenses reasonably incurred by such 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 SECTION 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section SECTION 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Metro One Telecommunications Inc), Registration Rights Agreement (Metro One Telecommunications Inc)
Indemnification; Contribution. If In the event of a registration of any of the Registrable Securities are included in a registration statement under the Securities Act pursuant to this Agreement:
7.1. To the extent permitted by applicable lawArticle 2, the Company shall will indemnify and hold harmless each Selling Holderseller of such Registrable Securities thereunder, each underwriter of such Registrable Securities thereunder and each other Person, if any, who controls such Selling Holder seller or underwriter within the meaning of the Securities Act, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damagesdamages or liabilities, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such seller, underwriter or controlling Person may become subject under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) 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 any material fact contained in any registration statement under which such registration statementRegistrable Securities were registered under the Securities Act pursuant to this Article II, including any preliminary prospectus or final prospectus contained therein, or any amendments amendment or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
supplement thereof, (ii) The 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
, or (iii) Any any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable federal, state or other securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable federal or state securities law arising from or relating to or in connection with the offer offering covered by such registration statement and sale of Registrable Securities pursuant to this Agreement; providedthe Company will reimburse each such seller, however, that the indemnification required each such underwriter and each such controlling Person for any legal or other expenses reasonably incurred by this Section 7.1 shall not apply to amounts paid them in settlement of connection with investigating or defending any such loss, claim, damage, liability or expense if such action, including amounts paid in settlement is effected without the consent of thereof; provided, however, that the Company (which consent shall will not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for if and to the extent that any such loss, claim, damage, damage or liability or expense to the extent that it arises out of or is based upon a Violation an untrue statement or alleged untrue statement or omission or alleged omission which occurs in reliance upon and or in conformity connection with written information furnished to the Company by the indemnified party expressly for use 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 registration by any such loss is based on seller, any such underwriter or arises out of an untrue statement or alleged untrue statement any such controlling Person. In the event of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from registration of 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 Registrable Securities under the Securities Act pursuant 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.
7.2. To the extent permitted by applicable lawthis Article 2, each Selling Holder shall seller of such Registrable Securities thereunder, severally and not jointly, will indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling Holdereach officer of the Company who signs the registration statement, any controlling Person each director of any such other Selling Holder the Company, each underwriter and each officer, director, partner, and employee Person who controls any underwriter within the meaning of such other Selling Holder and such controlling Personthe Securities Act, against any and all losses, claims, damagesdamages or liabilities, liabilities and expenses (joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons Company or such officer, director, underwriter or controlling Person may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any Violationuntrue statement or alleged untrue statement of any material fact contained in the registration statement under which such Registrable Securities were registered under the Securities Act pursuant to this Article 2, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and each such officer, director, underwriter and controlling Person for any legal or other expenses reasonably incurred by them in each connection with investigating or defending any such loss, claim, damage, liability or action, provided, however, that such seller will be liable hereunder in any such case to the extent (if and only to the extent) extent that any such Violation occurs loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and or in conformity connection with written information furnished by such Selling Holder seller expressly for use in connection with such registration; , and provided, further, however, that (x) the indemnification required by this Section 7.2 liability of each seller hereunder shall not apply be limited to amounts paid in settlement the proportion of any such loss, claim, damage, liability or expense if settlement which is effected without equal to the consent proportion that the public offering price of the relevant Selling Holder shares sold by such seller under such registration statement bears to the total public offering price of Registrable Securitiesall securities sold thereunder, which consent shall but not be unreasonably withheld, conditioned or delayed, and (y) in no any event shall the amount of any indemnity under this Section 7.2 to exceed the gross net proceeds from the applicable offering received by such Selling Holder.
7.3seller from the sale of Registrable Securities covered by such registration statement. Promptly after receipt by an indemnified party under this Section 7 hereunder of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make shall, if a claim under this Section 7in respect thereof is to be made against an indemnifying party hereunder, such indemnified party shall deliver to notify the indemnifying party a written notice of in writing thereof, but the commencement thereof and omission so to notify the indemnifying party shall not relieve it from any liability which it may have the right to participate in, and, such indemnified party other than under this Section 2(e) and shall only relieve it from any liability which it may have to such indemnified party under this Section 2(e) if and to the extent the indemnifying party so desires, jointly with is prejudiced by such omission. In case any other such action shall be brought against any indemnified party and it shall notify the indemnifying party similarly noticedof the commencement thereof, the indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel mutually reasonably satisfactory to the partiessuch indemnified party, acting reasonably; providedand, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses to be paid by after notice from the indemnifying party, if representation of party to such indemnified party by of its election so to assume and undertake the counsel retained by defense thereof, the indemnifying party would shall not be inappropriate due liable to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of 2(e) for any liability that it may have to any legal expenses subsequently incurred by such indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 partydefense thereof other than reasonable costs of investigation and of liaison with counsel so selected, as incurredprovided, within thirty (30) days of written notice thereof to however, that, if 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 defendants in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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) action include both such the indemnified party and the indemnifying party, party and such the indemnified party shall have been advised by counsel reasonably concluded that there may be one or more legal reasonable defenses available to it which are different from or in addition additional to those available to the indemnifying party and that or if the assertion interests 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 reasonably may be deemed to conflict with the indemnifying party in writing that it elects to employ separate counsel at the expense interests of the indemnifying party, the indemnifying indemnified party shall not have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, claim or proceeding on behalf with the expenses and fees of such indemnified party, it being understood, however, that separate counsel and other expenses related to such participation to be reimbursed by 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 as incurred. The indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels). No indemnifying party shall not be liable to an indemnify any indemnified party for any settlement of any action, proceeding or claim action effected without the written consent of the indemnifying party, ’s consent (which consent shall not be unreasonably withheld.
7.4withheld or delayed). If The indemnifying party shall not, except with the indemnification required by approval of each party being indemnified under this Section 7 2(e)(iii), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving of the claimant or the plaintiff to the parties being so indemnified of a release from the indemnifying party is unavailable to an indemnified party hereunder all liability in respect to such claim or litigation. In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any holder of Registrable Securities exercising rights under this Agreement, or any controlling Person of any such holder, makes a claim for indemnification pursuant to this Section 2(e) but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 2.05 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 otherwise required under this Section 2(e); 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 in this Section 7:
which they may be subject (iafter contribution from others) 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company on the one hand and indemnified parties of the holder of Registrable Securities on the other in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerationsconsiderations or, if the allocation provided herein is not permitted by applicable law, in such proportion as shall be appropriate to reflect the relative benefits received by the Company and any holder of Registrable Securities from the offering of the securities covered by such registration statement. The relative fault of such indemnifying party the Company on the one hand and indemnified parties of the holder of Registrable Securities on the other shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by, such indemnifying party by the Company on the one hand or indemnified partiesby the holder of Registrable Securities on the other, and the parties’ each party’s relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid statement or payable by a party as a result of the lossesomission; provided, claimshowever, damagesthat, liabilities and expenses referred to above shall be deemed to includein any such case, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by (A) no such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder holder will not be required to contribute any amount in excess of the amount by which the total public offering price at which the of all such Registrable Securities sold offered by it pursuant to such registration statement, but not in any event to exceed the net proceeds received by such indemnifying party seller from the sale of Registrable Securities covered by such registration statement; and distributed to the public were offered to the public exceeds the amount of any damages 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 (B) no Person guilty of fraudulent 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. The obligations of the Company and Holders under this Section 2(e) shall survive the completion of any offering of Registrable Securities in a registration statement under this Article 2 and shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Rights Agreement (Vuzix Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) The Company agrees to indemnify, to the extent permitted by applicable law, the Company shall indemnify each holder of Registrable Securities, its officers, directors, employees, agents and hold harmless Affiliates and each Selling Holder, each Person, if any, who Person that controls such Selling Holder holder (within the meaning of the Securities Act, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, ) against any and all losses, claims, damages, liabilities and expenses (joint or several)expenses, including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to resulting from any actual or threatened action, suit, proceeding or 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 untrue statement or alleged untrue statement of a material fact contained in such any registration statement, including any prospectus or preliminary prospectus or final prospectus contained thereinany amendment thereof or supplement thereto, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) The omission or alleged omission to state therein of a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; or
(iii) Any , or violation or alleged violation by the Company of the 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 arising from law, except insofar as the same are caused by or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable contained 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 written information furnished in writing to the Company by the indemnified party such holder expressly for use in connection with therein or by such registration; provided, further, that the indemnity agreement contained in this Section 7 shall not apply holder’s failure to any underwriter 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, 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 deliver a copy of the final registration statement or prospectus or any amendments or supplements thereto after the Company has not been sent or given to furnished such person at or prior to holder with a sufficient number of copies of the confirmation of sale to such person if such underwriter was under same. In connection with an obligation to deliver such final prospectus and failed to do so.
7.2. To underwritten offering, the extent permitted by applicable law, each Selling Holder Company shall indemnify such underwriters, their officers and hold harmless the Company, directors and each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, Person who controls the Company such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of Registrable Securities is participating, any other Selling Holder, any controlling Person of each such holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such other Selling Holder registration statement or prospectus and, to the extent permitted by law, shall indemnify the Company, its directors, officers, employees, agents and Affiliates and each officer, director, partner, Person who controls the Company (within the meaning of the Securities Act and employee of such other Selling Holder and such controlling Person, the Exchange Act) against any and all losses, claims, damages, liabilities and expenses (resulting from any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any writing furnished by such holder for use in such registration statement, prospectus or preliminary prospectus or any amendment or supplement thereto; provided that the obligation to indemnify shall be individual, not joint and several), including attorneys’ fees for each holder and disbursements and expenses shall be limited to the net amount of investigation, incurred proceeds received by such party holder from the sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any actual or threatened action, suit, proceeding or investigation, or claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair 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 Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (and only to the extentii) that unless in 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 indemnified party’s reasonable judgment (x) a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim or (y) such indemnified party has one or more defenses to such claim that are not available to the indemnification required by this Section 7.2 indemnifying party, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not apply to amounts paid in settlement settle such claim unless the indemnified party is released and discharged of any liability and the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3). Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the An indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 who is not entitled to indemnification hereunder). Any such indemnified party shall have the right to employ separate counsel in any such actionto, claim or proceeding and to participate in the defense thereofelects not to, but the fees and expenses of such counsel shall be 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, a 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 which 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 be obligated to pay 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 counsel for all parties indemnified by such indemnified partiesindemnifying party with respect to such claim, unless in the reasonable judgment of such any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such actionclaim.
(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, claim director or proceeding, in which event the indemnifying party shall be obligated to pay the fees and expenses controlling Person of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement and shall survive the transfer of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldsecurities.
7.4. (e) If the indemnification required by this Section 7 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 76:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationviolation. 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 7.1 6(a) and Section 7.26(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 6(e) were determined solely by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i6(e)(i). Notwithstanding ; provided, however, that with respect to any pro rata allocation, the provisions holders of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by included in any such indemnifying party and distributed registration shall be deemed to have only received the public were offered to the public exceeds the amount net proceeds from such holders’ sales of any damages that Registrable Securities in such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionregistration. 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.
Appears in 1 contract
Sources: Registration Rights Agreement (Dura Automotive Systems Inc)
Indemnification; Contribution. If (a) In connection with any registration of Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable lawpursuant to Section 2.01 or Section 2.02, the Company shall indemnify and will indemnify, defend, hold harmless and reimburse each Selling HolderStockholder, its Affiliates, directors, officers, shareholders, employees, advisors and representatives and each Person, if any, Person who controls such Selling Holder Stockholders within the meaning of either Section 15 of the Securities ActAct or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities liabilities, costs (including costs of preparation and expenses (joint or several), including reasonable attorneys’ fees and disbursements and any legal or other fees or expenses of investigation, incurred by such party pursuant to in connection with any actual investigation or threatened actionproceeding), suitexpenses, proceeding or investigationjudgments, or to which fines, penalties, charges and amounts paid in settlement (collectively, “Losses”) caused by 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 untrue statement or alleged untrue statement of a material fact contained or incorporated by reference in such registration statementany part of any Registration Statement or any Prospectus, including any preliminary prospectus amendment or final prospectus contained thereinsupplement thereto, used in connection with the Registrable Securities, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) 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, in the light of the circumstances under which they were made) not misleading; or. The reimbursements required by this Section 2.09(a) will be made by periodic payments during the course of the investigation or defense, as and when bills are received or expenses incurred.
(iiib) Any violation In connection with any Registration Statement or alleged violation by the Company of the Securities ActProspectus, 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 arising from or relating to or in connection with the offer and sale of Stockholders who sell Registrable Securities pursuant to this Agreementsuch Registration Statement or Prospectus will severally but not jointly indemnify, defend and hold harmless the Company, its directors, its officers, its employees and each Person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from the Company to the Stockholders, but only with respect to information arising out of or based upon information furnished by such Stockholder or on such Stockholder’s behalf (in each case, in its capacity as a Stockholder), in either case specifically for use in any Registration Statement or any Prospectus, including any amendment or supplement thereto; provided, however, that such Stockholder shall not be liable in any such case to the extent that prior to the filing of any such Registration Statement or Prospectus or amendment thereof or supplement thereto, such Stockholder has furnished to the Company in writing information expressly for use in such Registration Statement or Prospectus or any amendment thereof or supplement thereto which corrected or made not misleading information previously furnished to the Company.
(c) 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 2.09(a) or Section 2.09(b), such Person (the “Indemnified Party”) will promptly notify the Person against whom such indemnity may be sought (the “Indemnifying Party”) in writing and the Indemnifying Party shall be entitled to participate therein and, to the extent it shall wish, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party and will pay the fees and disbursements of such counsel related to such proceeding; provided, however, that the indemnification required by this Section 7.1 failure or delay to give such notice shall not apply relieve the Indemnifying Party of its obligations pursuant to amounts paid this Agreement except to the 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 to retain its own counsel, but the 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 counsel, (ii) the Indemnifying Party fails to assume the defense of the claim, action or proceeding within fifteen (15) Business Days following receipt of notice from the Indemnified Party or (iii) the Indemnified Party and the Indemnifying Party are both actual or potential defendants in, or targets of, any such action and the Indemnified Party has been advised by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them. It is understood that the Indemnifying Party will not, 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 (1) 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 as they are incurred. 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 such loss, claim, damage, liability action or expense if such settlement is proceeding effected without the its written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any but if such case for any such loss, claim, damageaction 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 (A) an unconditional release of such Indemnified Party from all 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; providedproceeding, further, (B) 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 (C) the sole relief (if any) provided is monetary damages that are reimbursed in full by the indemnity agreement contained Indemnifying Party.
(d) If the indemnification provided for 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds 2.09 from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party 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 in this Section 7:
(i) The indemnifying party2.09, then the Indemnifying 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 or expenses Losses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party and indemnified parties 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 the Company, on the one hand, and such Stockholder, on the other hand, in connection with the statements or expensesomissions that resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party Indemnifying Party and indemnified parties shall Indemnified Party will be determined by reference to, among other things, whether any Violation 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 committed taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partiesIndemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction, 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 7.1 and Section 7.22.09(c), any reasonable legal or other out-of-pocket fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iie) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 2.09(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account the equitable considerations referred to in Section 7.4(i2.09(d). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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 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. In no event shall any Stockholder be obligated to provide indemnification or contribution in excess of the net aggregate proceeds received from the sale of Registrable Securities pursuant to the applicable Registration Statement or Prospectus.
Appears in 1 contract
Indemnification; Contribution. If In the event the sale or distribution of ------------------------------ any Registrable Securities shares of Common Stock by Union are included in a registration statement under this Agreementfiled by Tosco:
7.1. To the extent permitted by applicable law, the Company shall (a) Tosco agrees to indemnify and hold harmless Union, its directors, officers and each Selling Holder, each Personperson, if any, who controls such Selling Holder Union within the meaning of either Section 15 of the Securities Act, Act or Section 20 of the Exchange Act from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damagesdamages and liabilities (including, liabilities and without limitation, any legal or other expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, reasonably incurred by Union or any such party pursuant to controlling person in connection with defending or investigating any actual such action or threatened action, suit, proceeding or investigation, or to which claim) caused by 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 untrue statement or alleged untrue statement of a material fact contained in such the registration statementstatement or any amendment thereof, including any preliminary prospectus or the final prospectus contained therein, (as amended or supplemented if Tosco shall have furnished any amendments or supplements thereto thereto), or caused by any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) 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
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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, except insofar as such losses, claims, damages, damages or liabilities and expenses arise out of are caused by any such untrue statement or are omission or alleged untrue statement or omission based upon any Violationinformation relating to Union furnished to Tosco in writing by Union expressly for use therein.
(b) Union agrees to indemnify and hold harmless Tosco, in its directors, its officers who sign the registration statement and each case person, if any, who controls Tosco within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent (and as the foregoing indemnity from Tosco to Union, but only with reference to the extent) that such Violation occurs information relating to Union furnished to Tosco in reliance upon and in conformity with written information furnished writing by such Selling Holder Union expressly for use in connection with such registration; providedthe registration statement (including any preliminary prospectus, however, that the final prospectus or any amendments or supplements thereto).
(xc) the indemnification required by In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either paragraph (a) or (b) of this Section 7.2 8, such person (the "indemnified party") shall not apply to amounts paid promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in settlement of any such losswriting and the indemnifying party, claim, damage, liability or expense if settlement is effected without the consent upon request of the relevant Selling Holder of Registrable Securitiesindemnified party, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall retain counsel reasonably satisfactory to the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of to represent the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to and any others the indemnifying party a written notice may designate in such proceeding and shall pay the fees and disbursements of the commencement thereof and the indemnifying party shall have the right such counsel related to participate insuch proceeding. In any such proceeding, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with but the fees and disbursements and expenses to of such counsel shall be paid by at the indemnifying party, if representation expense of such indemnified party by the counsel retained by unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceedingthem. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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, understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party 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 circumstancesjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all such indemnified partiesparties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Union, unless in the reasonable judgment case of such parties indemnified party a conflict pursuant to paragraph (a) above, and by Tosco in the case of interest may exist between such parties indemnified party and any other of such indemnified parties with respect pursuant to such action, claim or proceeding, in which event the paragraph (b) above. The indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels). No indemnifying party shall not be liable to an indemnified party for any settlement of any actionproceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding or claim effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnifying indemnified party, effect any settlement of any pending or threatened proceeding in respect of which consent shall not be unreasonably withheldany indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
7.4. If (d) To the extent the indemnification required by provided for in paragraph (a) or (b) of this Section 7 from the indemnifying party 8 is unavailable to an indemnified party hereunder or insufficient in respect of any losses, claims, damages, damages or liabilities or expenses referred to in this Section 7:
(i) The therein, then each indemnifying partyparty under such paragraph, 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, damages or liabilities or expenses in such proportion as is appropriate to reflect the relative fault of Tosco on the indemnifying party one hand and indemnified parties of Union on the other hand in connection with the actions which statements or omissions that resulted in such losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative fault of such indemnifying party Tosco on the one hand and indemnified parties Union on the other hand shall be determined by reference to, among other things, whether any Violation has been committed by, 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 party by Tosco or indemnified parties, by Union and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceedingomission.
(iie) The parties hereto agree that it would not be just obligations of Tosco and equitable if contribution pursuant to Union under this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account shall survive the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount completion of any damages that such indemnifying party has otherwise been required to pay by reason offering of such untrue or alleged untrue Common Stock in a registration 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 misrepresentationunder this Section, and otherwise.
Appears in 1 contract
Sources: Stock Purchase and Shareholder Agreement (Unocal Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. a. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each Personperson, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Personperson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons 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 untrue statement or alleged untrue statement of a material fact contained in such registration statementRegistration Statement, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 4(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent (and only to the extent) that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. b. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Personperson, if any, who controls the Company 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, 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 expenses of investigation, incurred by such 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 any 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 7.2 4(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 Registrable Securities, (which consent shall not be unreasonably withheld); and, conditioned or delayed, and (y) provided further that -------- ------- in no event shall the amount of any indemnity under this Section 7.2 4(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. c. Promptly after receipt by an indemnified party under this Section 7 4 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 74, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually reasonably satisfactory to the parties, acting reasonablyindemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingat its own expense (except as specifically provided below). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 7 4 except, if and to the extent that the indemnifying party is actually prejudiced thereby, but in no event shall not it relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 74. Any fees and expenses 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 sixty (3060) 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, but in such event such amounts shall be immediately refunded). Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. d. If the indemnification required by this Section 7 4 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 74:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation; provided however, that in no event shall the obligation of any indemnifying party to contribute under this clause (i) exceed the amount that such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for in Section 4(a) had been available under the circumstances. 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 7.1 4(a) and Section 7.2(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 4(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account the equitable considerations referred to in Section 7.4(i4(d)(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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 person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
e. The obligations of the Company and the Holder under this Section 4 shall survive the completion of any offering of Common Stock pursuant to a registration statement.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the Company (a) The Parent shall indemnify and hold harmless each Selling HolderCompany Stockholder (including the employees, agents, representatives, officers and directors of the Company Stockholder and its Affiliates) and each Person, if any, Person who controls such Selling Holder Company Stockholder (within the meaning of the Securities Act and the Exchange Act, ) (each a “Registration Holder Indemnitee”) from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees reasonable costs of investigation and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 reasonable legal fees) arising out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
(i) Any untrue statement any untrue, or alleged untrue allegedly untrue, statement of a material fact contained in such registration statementany Registration Statement, including any prospectus or preliminary prospectus or final prospectus contained therein, notification or offering circular prepared by the Parent in connection with the registration and/or offering of the Registrable Securities (as amended or supplemented if the Parent shall have furnished any amendments or supplements thereto thereto) or arising out of or based upon any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) 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
, except insofar as the same are caused by or contained in any information concerning such Company Stockholder furnished in writing to the Parent by such Company Stockholder expressly for use in such document or (iiiii) Any any violation or alleged violation by the Company Parent (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any applicable state securities law law, or any rule or regulation promulgated under the Securities Act, the Exchange Act Act, or any applicable state securities law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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 solaw.
7.2. To the extent permitted by applicable law, each Selling Holder (b) Each Company Stockholder shall indemnify and hold harmless the CompanyParent, each of and its directors, officers, employees and each of its officers who shall have signed the registration statement, each Person, if any, Person who controls the Company Parent (within the meaning of the Securities Act and the Exchange Act, any other Selling Holder, any controlling Person of any such other Selling Holder ) from 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 attorneys’ fees and disbursements and expenses reasonable costs of investigation, incurred by such 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 ) arising out of or are based upon any Violationuntrue, or allegedly untrue, statement of a material fact contained in each case any Registration Statement, prospectus or preliminary prospectus or notification or offering circular prepared by the Parent in connection with the registration and/or offering of the Registrable Securities (as amended or supplemented if the Parent 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 extent (and only to the extent) that statements therein not misleading, if such Violation occurs statement or omission was made in reliance upon and in conformity with written any information concerning such Company Stockholder furnished in writing to the Parent by such Selling Holder expressly Company Stockholder specifically for use in connection with the preparation of such registration; provided, however, that document.
(xc) Each Person entitled to indemnification hereunder (the indemnification required “Registration Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Registration Indemnifying Party”) after the receipt by this Section 7.2 shall not apply to amounts paid in settlement the Registration Indemnified Party of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of written notice of the commencement of any action, suit, proceeding, proceeding or investigation or threat thereof made in writing for which such indemnified party may make a the Registration Indemnified Party intends to claim under indemnification or contribution pursuant to this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonablyAgreement; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to so notify the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but Registration Indemnifying Party shall not relieve the indemnifying party Registration Indemnifying Party of any liability that it may have to the Registration Indemnified Party hereunder unless, and only to the extent that, such failure results in the Registration Indemnifying Party’s forfeiture of substantive rights or defenses. If notice of commencement of any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) is given to the Registration Indemnifying Party as above provided, the Registration Indemnifying Party shall be paid entitled to participate in and, to the indemnified partyextent it may wish, as incurredjointly with any other Registration Indemnifying Party similarly notified, within thirty (30) days to assume the defense of written notice thereof such action at its own expense, with counsel chosen by it and reasonably satisfactory to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder)such Registration Indemnified Party. Any such indemnified party The Registration Indemnified Party shall have the right to employ separate counsel in any such action, claim or proceeding action and to participate in the defense thereof, but the fees and expenses of such counsel (other than reasonable costs of investigation) shall be paid by the expenses of such indemnified party Registration Indemnified Party unless (i) the indemnifying party has agreed Registration Indemnifying Party agrees to pay such fees and expenses or the same, (ii) the indemnifying party shall have failed Registration Indemnifying Party fails to promptly assume the defense of such action, claim or proceeding action with counsel reasonably satisfactory to the Registration Indemnified Party in its reasonable judgment or (iii) the named parties to any such action, claim or proceeding action (including any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by such counsel that either (x) representation of such Registration Indemnified Party and the Registration Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more legal defenses available to it which are different from or in addition additional to those available to the indemnifying party and that the assertion Registration Indemnifying Party. In either 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 partycases, the indemnifying party Registration Indemnifying Party shall not have the right to assume the defense of such action, claim or proceeding action on behalf of such indemnified party, it being understood, however, that the indemnifying party Registration Indemnified Party. No Registration 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 any settlement entered into without its written consent (other 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 case where the Registration Indemnifying Party is unconditionally released from liability 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 such additional counsel or counselsits rights are not adversely effected). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by provided for in this Section 7 7.5 from the indemnifying party Registration Indemnifying Party pursuant to applicable law is unavailable to an indemnified party a Registration Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7:
(i) The indemnifying partytherein, then the Registration Indemnifying Party, in lieu of indemnifying such indemnified partyRegistration Indemnified Party, shall contribute to the amount paid or payable by such indemnified party Registration Indemnified Party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Registration Indemnifying Party and indemnified parties Registration Indemnified Party in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault faults of such indemnifying party Registration Indemnifying Party and indemnified parties Registration Indemnified Party shall be determined by reference to, among other things, whether any Violation 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 committed made by, or relates to information supplied by, such indemnifying party Registration Indemnifying Party or indemnified partiesRegistration Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. 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 7.1 Sections 7.5(a), (b) and Section 7.2(c), any legal or other fees fees, charges or expenses reasonably incurred by such 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 7.4 7.5(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 in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party 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 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.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in 7.1 With respect to a registration statement under this Agreement:
7.1. To Shelf Registration Statement, to the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Participating Holder, each Person, if any, who controls such Selling Participating Holder within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Participating Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ fees and disbursements and expenses of investigationinvestigation (collectively, “Losses”), incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 Losses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
(ia) Any 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(iib) The 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 light of the circumstances under which they are made, not misleading; or
(iiic) Any any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable federal or state securities law or any rule or regulation promulgated under applicable to the Securities Act, the Exchange Act or any applicable state securities law arising from or Company relating to any action or inaction by the Company in connection with the offer and sale of Registrable Securities pursuant to this Agreementregistration effected by the registration statement; 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 Loss if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense Loss to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in any indemnification required by this Section 7 7.1 shall not apply to any underwriter Participating Holder to the extent that any such loss Loss is based on or arises out of (i) sales of Registrable Securities during any Suspension Period or (ii) 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 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 been delivered to any such Participating Holder but has not been sent or given by any such Participating Holder 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 soPerson alleging damage.
7.2. 7.2 To the extent permitted by applicable law, each Selling Participating Holder shall shall, severally and not jointly, indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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, Act against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, Losses incurred by the Company or such party Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which the Company or 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 Losses 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 arises out of or is based upon and in conformity with written information furnished by such Selling or on behalf of a Participating Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense Loss if such settlement is effected without the consent of the relevant Selling Holder of Registrable SecuritiesParticipating Holder, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity obligation under this Section 7.2 exceed the gross net proceeds from the applicable offering received by such Selling Participating Holder.
7.3. (a) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingthereof. The failure to deliver written notice to the indemnifying party within a reasonable time as soon as practicable following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 to the extent of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 forty five (3045) 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). .
(b) Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 (iiiii) 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 7.4 If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Losses referred to in this Section 7:
(ia) 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 or expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expensesLosses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i7.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6 The obligations of the Company and the Participating Holders under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Genaissance Pharmaceuticals Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 5.1 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 meaning of the Securities Act, ; and each officer, director, partner, partner and employee and affiliate of such Selling Holder and such controlling Person, ; against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, to the Exchange Act or other federal or state laws, insofar as extent 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) 5.1.1 Any untrue statement or alleged untrue statement of a material fact 26 contained in such registration statementthe Registration Statement, including any preliminary prospectus or final prospectus contained thereinProspectus, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) 5.1.2 The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) 5.1.3 Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned withheld or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense incurred by a Selling Holder (or any Person, if any, who controls such Selling Holder within the meaning of the Securities Act, or any officer, director, partner and employee of such Selling Holder and such controlling Person) to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written the Holder Information or other information furnished to the Company by the indemnified party or on behalf of such Selling Holder expressly for use 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 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 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 soRegistration Statement.
7.2. 5.2 To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, ; each of its directors, each of its officers who shall have signed the registration statement, Registration Statement; each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigationexpenses, incurred by such 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, to the Exchange Act or other federal or state laws, insofar as extent 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 the Holder Information or other information furnished to the Company by such or on behalf of that Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling HolderRegistration Statement.
7.3. 5.3 Promptly after receipt by an indemnified party under this Section 7 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 75, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure of an Indemnified Party to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the 5 unless such failure is prejudicial to such indemnifying party of any liability that it may have party's ability to any indemnified party otherwise than pursuant to this Section 7defend such action. Any fees and expenses incurred by the indemnified party (including any fees and expenses 27 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) 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses expenses, or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding 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 which 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 would 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldwithheld or delayed.
7.4. 5.4 If the indemnification required by this Section 7 5 from the indemnifying party is determined by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 75:
(i) 5.4.1 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses 28 referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 5.1 and Section 7.25.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) 5.4.2 The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 5.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission5.4.
1. 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 a fraudulent misrepresentation.
5.5 If indemnification is available under this Section 5, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 5 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 5.4.
5.6 The obligations of the Company and the Selling Holders under this Section 5 shall survive the completion of any offering of Registrable Shares pursuant to the Registration Statement and any termination of this Agreement.
Appears in 1 contract
Sources: Stock Agreement (Starwood Hotel & Resorts Worldwide Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the (a) The Company shall will indemnify and hold harmless each Selling Holderof the Participating Purchasers and their respective affiliates and all of their respective directors, officers, members, partners, employees, fiduciaries, agents and each Person, if any, other person who controls such Selling Holder persons within the meaning of the Securities ActAct or the Exchange Act (collectively, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, the "Indemnified Parties") against any and all losses, claims, damagesdamages or liabilities, liabilities and expenses (joint or severalseveral (including without limitation reasonable attorneys' fees and any and all expenses whatsoever incurred in investigating, preparing, compromising or defending against any Third Party Claim, and any and all amounts paid in settlement of any Third Party Claim), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Indemnified Party may become subject as a result of a Third Party Claim against such Indemnified Party, under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar including without limitation as such losses, claims, damages, damages or liabilities and expenses as may arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
(i) Any an untrue statement or alleged untrue statement of a material fact contained in such registration statementany Preliminary Prospectus, including any preliminary prospectus the Registration Statement or final prospectus contained thereinthe Prospectus, or any amendments amendment or supplements thereto supplement thereto, or any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) The 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
(iii) Any violation , and will reimburse the Indemnified Party for any legal or alleged violation other expenses reasonably incurred by the Company of the 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 arising from or relating to or such Indemnified Party in connection with the offer and sale of Registrable Securities pursuant to this Agreementinvestigating or defending any such Third Party Claim as such expenses are incurred; provided, however, that the indemnification required by this Section 7.1 Company shall not apply be liable in any such case to amounts paid in settlement of the extent that any such loss, claim, damage, damage or liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by the indemnified party Franklin Mutual as such Participating Purchaser expressly for use therein (including without limitation the matters identified in connection with Section 3(c)(xi) ("Participating Purchaser Information").
(b) Each Participating Purchaser will indemnify and hold harmless the Company, its affiliates, and their respective directors, officers, members, partners, employees, fiduciaries, agents and each other person who controls such registration; providedpersons within the meaning of the Securities Act or the Exchange Act against any losses, furtherclaims, that damages or liabilities (including without limitation reasonable attorneys' fees and any and all expenses), to which the indemnity agreement contained in this Section 7 shall not apply to any underwriter to Company may become subject, under the extent that any Act or otherwise, insofar as such loss is based on losses, claims, damages or arises liabilities arise out of or are based upon an untrue statement or alleged untrue statement of a material factfact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or an omission any amendment 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 statementsupplement thereto, 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 Violationthe omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent (and extent, but only to the extent) , that such Violation occurs untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information the Participating Purchaser Information furnished by Franklin Mutual or such Selling Holder expressly Participating Purchaser and will reimburse the Company for use any legal or other expenses reasonably incurred by the Company in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of investigating or defending any such loss, claim, damage, liability action or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by claim as such Selling Holderexpenses are incurred.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 paragraph (a) or (b) above of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make shall, if a claim under this Section 7, such indemnified party shall deliver in respect thereof is to be made against the indemnifying party a written notice under such paragraph, notify the indemnifying party in writing of the commencement thereof and thereof; provided, that the omission so to notify the indemnifying party shall not relieve it from any liability that it may have the right to participate in, and, under paragraph (a) or (b) except to the extent it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure and, provided further, that the failure to notify the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but person shall not relieve the indemnifying party of it from any liability that which it may have to any indemnified party otherwise than pursuant under such paragraph. 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 this Section 7. Any fees and expenses incurred by 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 satisfactory to such indemnified party (including any fees and expenses incurred in connection who shall not, except with investigating or preparing to defend such action or proceeding) shall be paid to the consent of the indemnified party, as incurred, within thirty (30) days of written notice thereof be counsel to the indemnifying party), and, after notice from 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 of its election so to employ separate counsel in any such action, claim or proceeding and to participate in assume the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 be liable to assume the defense such indemnified party under such paragraph for any legal expenses of such actionother counsel or any other expenses, claim or proceeding on behalf of in each case subsequently incurred by 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 defense thereof other than reasonable costs 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 such additional counsel or counsels)investigation. No indemnifying party shall be liable to an indemnified party for any settlement of any actionshall, proceeding or claim without the written consent of the indemnifying indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which consent shall indemnification or contribution may be sought hereunder (whether or not be unreasonably withheldthe indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
7.4. (d) If the indemnification required by provided for in this Section 7 from the indemnifying party 6 is unavailable to or insufficient to hold harmless an indemnified party hereunder under paragraph (a) or (b) above in respect of any losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) referred to in this Section 7:
(i) The therein, then 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 (or expenses actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Participating Purchasers on the other from the offering of the Rights and Subscription Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under paragraph (c) above, 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 on the one hand and indemnified parties the Participating Purchasers on the other in connection with the actions statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Participating Purchasers on the other shall be deemed to be in the same proportion as the total net proceeds from the Rights Offering (before deducting expenses) received by the Company bear to the Commitment Fee received by the Participating Purchasers. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, 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 party by the Company on the one hand or indemnified parties, the Participating Purchasers on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto Participating Purchasers agree that it would not be just and equitable if contribution contributions pursuant to this Section 7.4 paragraph (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 Section 7.4(ithis paragraph (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 paragraph (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 7.4paragraph (d), an indemnifying party that is a Selling Holder will the Participating Purchasers shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Commitment Securities sold purchased by such indemnifying party and distributed to the public were offered to the public exceeds it exceed the amount of any damages that which such indemnifying party Participating Purchasers 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.
(e) The obligations of the Company under this Section 6 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls such Participating Purchaser within the meaning of the Securities Act or Exchange Act; and the obligations of each Participating Purchaser under this Section 6 shall be in addition to any liability which such Participating Purchaser may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act or Exchange Act.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 5.1 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 meaning of the Securities Act, ; and each officer, director, partner, partner and employee and affiliate of such Selling Holder and such controlling Person, ; against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, to the Exchange Act or other federal or state laws, insofar as extent 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) 5.1.1 Any untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus or final prospectus contained thereinProspectus, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) 5.1.2 The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) 5.1.3 Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned withheld or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense incurred by a Selling Holder (or any Person, if any, who controls such Selling Holder within the meaning of the Securities Act, or any officer, director, partner and employee of such Selling Holder and such controlling Person) to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written the Holder Information or other information furnished to the Company by the indemnified party or on behalf of such Selling Holder expressly for use 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 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 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 soRegistration Statement.
7.2. 5.2 To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, ; each of its directors, each of its officers who shall have signed the registration statement, Registration Statement; each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigationexpenses, incurred by such 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, to the Exchange Act or other federal or state laws, insofar as extent 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 the Holder Information or other information furnished to the Company by such or on behalf of that Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling HolderRegistration Statement.
7.3. 5.3 Promptly after receipt by an indemnified party under this Section 7 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 75, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.other
Appears in 1 contract
Sources: Registration Rights Agreement (Aspen Enterprises International Holdings LTD)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 7.1 To the extent permitted by applicable law, the Company Trust shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partnertrustee, partner and employee and affiliate 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 disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewith;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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company Trust (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company Trust 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 written information related to the indemnified party furnished to the Company Trust by the indemnified party in writing expressly for use in connection with such registration; and 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 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 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 an underwriter was under an obligation to deliver such final prospectus and failed to do so.
7.2. 7.2 To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the CompanyTrust, and each of its directorsthe officers, each employees and Trustees of its officers the Trust who shall have signed the registration statement, each Person, if any, who controls the Company Trust within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and each officer, director, partnertrustee, 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, 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 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 related to the indemnified party seeking indemnification furnished by such Selling Holder in writing expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, (which consent shall not be unreasonably withheld, conditioned or delayed, ) and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds (net of any underwriting discounts or commissions) from the applicable offering received by such Selling Holder.
7.3. 7.3 Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 to the extent of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 in writing that there may be one or more legal defenses available to it which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 7.4 If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(iii) In no event shall the amount of any contribution from the Selling Holders under this Section 7.4 exceed the proceeds (net of any underwriting commissions or discounts) from the applicable offering received by such Selling Holder.
7.5 If indemnification is available under this Section 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6 The obligations of the Trust and the Selling Holders of Registrable Securities under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Starwood Mezzanine Investors Lp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this AgreementSection 9:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may -42- 44 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 pursuant to a final non-appealable order (collectively a “"Violation”"):
(i) Any 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) The the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) Any any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 9.7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises is determined by a court of competent jurisdiction by a final non-appealable order to have solely arisen out of or is be based upon a Violation which occurs occurred in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 9.7(a) shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statementand employees, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 are determined by a court of competent jurisdiction by a final non-appealable order to have solely arisen out of or are be based upon any Violation, in each case to the extent (and only to the extent) a Violation that such Violation occurs occurred 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 7.2 9.7(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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 9.7(b) exceed the gross net proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 9.7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 79.7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 9.7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 79.7. Any reasonable fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 9.7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 79.7:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 9.7(a) and Section 7.29.7(b), any reasonable legal or other fees or expenses reasonably incurred by such 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 7.4 9.7(d) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission9.7(d)(i) above. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 9.7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 9.7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 9.7(d) above.
(f) The indemnification required by this Section 9.7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred. In the event that it shall be subsequently determined that the recipient of any such periodic payment shall not be entitled to indemnification hereunder, such recipient promptly shall repay such payments, together with interest thereon at the Agreed Rate from the date of original receipt to the date of repayment.
(g) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 9.7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Section 9, and otherwise.
Appears in 1 contract
Sources: Warrant Agreement (Norand Corp /De/)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate 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 disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.this
Appears in 1 contract
Indemnification; Contribution. If 4.4.1 Incident to any Registrable Securities are included in a registration statement under referred to in this Agreement:
7.1. To the extent permitted by Section 4, and subject to applicable law, the Company shall will indemnify and hold harmless each Selling HolderHolder who offers or sells any such Registrable Securities in connection with such registration statement (including its directors, officers, employees and agents), and each Person, if any, person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities ActAct or Section 20 of the Exchange Act (a "Controlling Person"), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (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), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon on (a) 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, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or prospectus), (b) any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) The 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 it not misleading; or
, or (iiic) Any violation or alleged any violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or "blue sky" laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use thereunder in connection with such registration; provided, furtherhowever, -------- ------- that the indemnity agreement contained in this Section 7 shall Company will not apply to any underwriter be liable to the extent that any such loss loss, claim, damage, expense or liability arises from and is based on or arises out of an untrue statement or omission or alleged untrue statement of a material fact, or an omission made in reliance on and in conformity with information furnished in writing to the Company by such Holder or alleged omission Controlling Person expressly for use in such registration statement. With respect 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 untrue statement or omission in the final prospectus has not been sent or given to such person at or prior information furnished in writing to the confirmation of sale to Company by such person if Holder expressly for use in such underwriter was under an obligation to deliver registration statement, such final prospectus and failed to do so.
7.2. To the extent permitted by applicable law, each Selling Holder shall will indemnify and hold harmless the Company, each of Company (including its directors, officers, employees and agents), and each of its officers who shall have signed the registration statement, each Person, if any, person who controls the Company any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, any other Selling Holder, any controlling Person of any such other Selling Holder from and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, insofar as such losses, claims, damages, liabilities and expenses arise out of at common law or are based upon any Violation, in each case otherwise to the same extent (and only to provided in 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; providedimmediately preceding sentence. In no event, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount liability of any indemnity a Holder for indemnification under this Section 7.2 4.4.1 in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the gross net proceeds from the applicable offering received by such Selling HolderHolder from its sale of Registrable Securities under such registration statement.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 4.4.2 If the indemnification required provided for in Section 4.4.1 above for any reason is held by this Section 7 from the indemnifying party is 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 in therein, then each indemnifying party under this Section 7:
(i) The indemnifying party4.4, 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company, on the one hand, and indemnified parties the Holders, on the other, in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company and indemnified parties the Holders shall be determined by reference to, among other things, whether any Violation has been committed by, 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 party by the Company or indemnified parties, the Holders and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto Holders agree that it would not be just and equitable if contribution pursuant to this Section 7.4 4.4.2 were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4In no event, an indemnifying party that is however, shall a Selling Holder will not be required to contribute any amount under this Section 4.4.2 in excess of the amount net proceeds received by which the total price at which the such Holder from its sale of Registrable Securities sold by under such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party 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.
4.4.3 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 4.4 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, payable as the same are incurred. The indemnification and contribution provided for in this Section 4.4 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
4.4.4 Any person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification, but the failure to do so shall not relieve the indemnifying party from any liability, except to the extent it is actually prejudiced by the failure or delay in giving such notice, and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld).
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement Registration Statement under this AgreementArticle 3:
7.1. (a) 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 meaning of Section 15 of the Securities Act, Act or Section 20 of the Exchange Act and each officer, director, partner, partner and employee and affiliate of such Selling Holder and or such controlling Person, Person against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ fees and disbursements and expenses of investigation, incurred by such party Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state securities 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 collectively, a “Violation”):
(i) Any any untrue statement or alleged untrue statement of a material fact contained in such registration statementRegistration Statement or the related Prospectus, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) The the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein made therein, in light of the circumstances in which they were made, not misleading; or
(iii) Any any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the Company shall not be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it is determined by a court of competent jurisdiction to have arisen out of or be based upon (x) a Violation which occurred in reliance upon and in conformity with written information furnished to the Company by the party seeking indemnification under this Section 3.7(a) expressly for use in connection with such registration or (y) the failure of the party seeking indemnification under this Section 3.7(a) to deliver a copy of the relevant current Prospectus or any amendments or supplements thereto after the Company has furnished such party, or any underwriter, with copies of the same in advance of the time of first offer or sale; further provided, that the indemnification required by this Section 7.1 3.7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (Company, which consent shall not be unreasonably withheld, conditioned or delayed). The Company shall also indemnify any underwriters, nor shall selling brokers, dealer managers and similar securities industry professionals participating in such distribution, their officers, directors, agents and employees and each person who controls such persons (within the Company be liable in any such case for any such loss, claim, damage, liability meaning of Section 15 of the Securities Act or expense Section 20 of the Exchange Act) to the same extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity as provided above with written information furnished respect to the Company by the indemnified party expressly for use 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 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 preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy indemnification 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 soSelling Holders.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, any Registration Statement and each Person, if any, who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, 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 expenses of investigation, incurred by such party Person 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 securities 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) a Violation that such Violation occurs occurred 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 (xi) the indemnification required by this Section 7.2 3.7(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 Registrable SecuritiesHolder, which consent shall not be unreasonably withheld, conditioned or delayed, ; and (yii) in no event shall the amount of any indemnity under this Section 7.2 3.7(b) exceed the gross net proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 3.7 of notice of the commencement of any action, suit, proceedingproceeding or investigation, investigation or any threat thereof made in writing writing, for which such indemnified party may make a claim under this Section 73.7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, in and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with the reasonable 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve 3.7 except to the extent that such failure has materially adversely affected the indemnifying party of any liability that it may have party’s ability to any indemnified party otherwise than pursuant to this Section 7defend such action. Any fees and expenses 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) 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)party. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses or expenses, (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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
Sources: Registration Rights Agreement (United Western Bancorp Inc)
Indemnification; Contribution. If (a) Incident to any Registrable Securities are included in a registration statement under referred to in this Agreement:
7.1. To the extent permitted by Section 6, and subject to applicable law, the Company shall will indemnify and hold harmless each Selling Holderunderwriter, each PersonHolder of Registrable Securities (including its respective partners, if anydirectors, officers, employees and agents) so registered, and each person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act of 1934 and the rules and regulations promulgated thereunder (the "Exchange Act"), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (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), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, losses claims damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
on (i) Any any untrue statement or alleged untrue true statement of a material fact contained in such registration statement, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or any documents filed under state securities or “blue sky” laws in connection therewith;
prospectus), (ii) The 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 it not misleading; or
, or (iii) Any violation or alleged any violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or blue sky laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from or relating to or thereunder in connection with the offer and sale of Registrable Securities pursuant to this Agreement; providedsuch registration, however, provided that the indemnification required by this Section 7.1 shall Company will not apply be liable to amounts paid in settlement of any the extent that such loss, claim, damage, expense or liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises out of or from and is based upon a Violation which occurs on an untrue statement or omission or alleged untrue statement or omission made in reliance upon on and in conformity with written information furnished in writing to the Company by the indemnified party such underwriter, Holder or controlling person expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 shall not apply registration statement. With respect to any underwriter to the extent that any such loss is based on or arises out of an untrue statement or omission or alleged untrue statement of a material fact, or an omission or alleged omission in the information furnished in writing to state a material fact, contained the Company by such Holder expressly for use in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue registration 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall will indemnify and hold harmless each underwriter, the Company, each of Company (including its directors, each of its officers who shall have signed the registration statementofficers, employees and agents), each Personother Holder of Registrable Securities (including its respective partners directors, if anyofficers, employees and agents) so registered, and each person who controls the Company any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, any other Selling Holder, any controlling Person of any such other Selling Holder from and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, insofar as such losses, claims, damages, liabilities and expenses arise out of at common law or are based upon any Violation, in each case otherwise to the same extent (and only to provided in 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; providedimmediately preceding sentence. In no event, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount liability of any indemnity a Holder for indemnification under this Section 7.2 subparagraph 6.7
(a) exceed the gross proceeds from the applicable offering received by such Selling HolderHolder from its sale of Registrable Securities under such registration statement.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceedingb) 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required provided for in subparagraph 6.7(a) above for any reason is held by this Section 7 from the indemnifying party is 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 in therein, then each indemnifying party under this Section 7:
(i) The indemnifying partyparagraph 6.7, 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 or 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 parties the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, 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 as 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 parties the underwriters shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Company, such indemnifying party the selling Holders or indemnified parties, the underwriters and the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result of Company, the lossesHolders, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7.4 subparagraph 6.7
(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4In no event, an indemnifying party that is however, shall a Selling Holder will not be required to contribute any amount under this subparagraph 6.7(b) in excess of the amount proceeds received by which the total price at which the such Holder from its sale of Registrable Securities sold by under such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party 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 guilty of such fraudulent misrepresentation.
(c) The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in this paragraph 6.7 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. The indemnification and contribution provided for in this paragraph 6.7 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
Appears in 1 contract
Sources: Stock Purchase Agreement (Geotel Communications Corp)
Indemnification; Contribution. 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 meaning of the Securities Act, and each officer, director, partner, principal and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration. The Company 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 the Selling Holders; provided, furtherhowever, 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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, 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross 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 the Company; provided, however, 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 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 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.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 to the extent of such material prejudice, but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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)party. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of borne by 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim effected without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (KPMG Consulting Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law(a) The Company agrees to indemnify, the Company shall indemnify defend and hold harmless each Selling of the Trustees, each Holder, each Personperson, if any, who controls such Selling controls, is controlled by or is under common control with any Trustee or Holder within the meaning of Section 15 of the Securities ActAct or Section 20 of the Exchange Act and their respective Affiliates (each, an “Non-Company Indemnified Party”) from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses liability, claim or any actions or proceedings in respect thereof (joint or several), including attorneys’ fees and disbursements and expenses the reasonable cost of investigation, incurred by ) which such party pursuant to any actual Non-Company Indemnified Party may incur or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject to under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such lossesloss, claimsdamage, damagesexpense, liabilities and expenses arise liability, claim, action or proceeding (i) arises out of or are is 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 statementany Registration Statement, Prospectus or Issuer Free Writing Prospectus, including any preliminary prospectus or final prospectus contained document incorporated by reference therein, or in any amendments amendment or supplements supplement thereto or in any documents filed under state securities or “blue sky” laws in connection therewith;
preliminary prospectus, (ii) The 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 Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading; or
, 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, Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which such statements were made, not misleading, or (iii) Any arises out of any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from or relating to or laws in connection with the offer and sale of Registrable Securities securities by a Holder pursuant to this Agreementany Registration Statement in which such Holder is participating, and the Company shall reimburse, as incurred, the Non-Company 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 the Company shall not be required to provide any indemnification required by pursuant to this Section 7.1 shall not apply to amounts paid 7(a) in settlement of any such case insofar as any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheldexpense, conditioned or delayed), nor shall the Company be liable in any such case for any such lossliability, claim, damage, liability action or expense to the extent that it proceeding arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a Violation which occurs in reliance upon material fact contained in, or omitted from, and in conformity with written information furnished in writing by or on behalf of a Trustee or a Holder to the Company expressly for use in, any Registration Statement, Prospectus or Issuer Free Writing Prospectus, including, without limitation, information provided to the Company by the indemnified party expressly for use such Holder in connection with such registrationa Notice and Questionnaire; provided, provided further, however, that the no Trustee or Holder shall be entitled to this indemnity agreement contained in this Section 7 shall not apply to any underwriter to the extent that any extent, and only to the extent, such loss is based on loss, damage, expense, liability, claim, action or proceeding arises out of an a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities by such Trustee or Holder, as the case may be, during a Suspension Period, provided such Trustee or Holder, as the case may be, received, prior to such disposition, a Suspension Notice with respect to such Suspension Period. This indemnity agreement will be in addition to any liability which the Company may otherwise have to any Non-Company Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective Affiliates (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions or proceedings in respect thereof (including the reasonable cost of investigation) which such Company 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 (A) any untrue statement or alleged untrue statement of a material factfact contained in, and in conformity with any Holder Information, or an arises out of or is based upon any omission or alleged omission to state a material factfact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Registration Statement or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statementProspectus, or any amendment or supplement thereto, or necessary to make such omission or alleged omissionHolder Information not misleading; (B) a sale, and by such Holder, pursuant to a copy Shelf Registration Statement, of Registrable Securities during a Suspension Period, provided that the final prospectus has not been sent or given Company shall have theretofore provided such Holder with a Suspension Notice with respect to such person at Suspension Period; or prior to the confirmation (C) a public sale of sale to Registrable Securities by such person if such underwriter 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 Company, each of its directors, each of its officers who shall have signed the registration statement, each Personwithout delivery, if any, who controls the Company within the meaning of required by the Securities Act, any other Selling Holderof the most recent applicable Prospectus provided to such Holder by the Company pursuant hereto; and, subject to the limitation set forth in the immediately preceding clause, each Holder shall reimburse, as incurred, any controlling Person of Company Indemnified Party for any such legal or 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 attorneys’ fees and disbursements and expenses of investigation, reasonably incurred by such 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 Company Indemnified Party in connection with investigating or defending any loss, damage, expense, liability, claim, action or proceeding in respect thereof. This indemnity agreement will be in addition to any liability which such registrationHolder may otherwise have to any Company Indemnified Party. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds (after deducting the underwriters’ discounts and commissions, if any) received by such Holder upon the sale, pursuant to the Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 7(a) or Section 7(b), such Non-Company Indemnified Party or Company Indemnified Party (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and payment of all fees and expense; provided, however, that (x) the indemnification required by this Section 7.2 shall not apply omission to amounts paid in settlement of any so notify such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but Indemnifying Party shall not relieve the indemnifying party of such Indemnifying Party from any liability that which it may have to any indemnified party otherwise than pursuant to this Section 7such Indemnified Party or otherwise. Any fees and expenses 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 Such Indemnified Party shall have the right to employ separate its own counsel in any such action, claim or proceeding and to participate in the defense thereofcase, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party Indemnified Party unless (i) the indemnifying party has agreed to pay employment of such fees and expenses or (ii) the indemnifying party counsel shall have failed to promptly assume been authorized in writing by such Indemnifying Party in connection with the defense of such actionProceeding or such Indemnifying Party shall not have, claim within a reasonable period of time in light of the circumstances, employed counsel to defend such Proceeding 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 Indemnified Party shall have been advised by counsel reasonably concluded that there may be one or more legal defenses available to it which that are different from from, additional to or in addition to conflict with 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 Indemnifying Party (in which case, if case 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 Indemnifying Party shall not have the right to assume direct the defense of such action, claim or proceeding Proceeding on behalf of the Indemnified Party, in any of which events such indemnified party, fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that the indemnifying party such 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, not be liable for the reasonable fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys related Proceedings (together with appropriate in additional to any 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 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 counsel as contemplated by the second sentence of this paragraph, then such additional counsel or counsels). No indemnifying party Indemnifying Party agrees that it shall be liable to an indemnified party for any settlement of any actionProceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, proceeding or claim (ii) such Indemnifying Party shall not have fully 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 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement 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 indemnifying party, which consent shall subject matter of such Proceeding and does not be unreasonably withheldinclude an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
7.4. (d) If the indemnification required by provided for in this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder Indemnified Party under Section 7(a) or Section 7(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, liabilities expenses, liabilities, claims or expenses actions referred to in this Section 7:
(i) The indemnifying partytherein, then each 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, damages, expenses, liabilities, claims, damages, liabilities actions or expenses proceedings (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by the Holders or the Trustees, 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 parties of the Holders or the Trustees, on the other hand, in connection with the actions statements or omissions which resulted in such losses, damages, expenses, liabilities, claims, damages, liabilities actions or expensesproceedings, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company, on the one hand, and indemnified parties of the Holders or the Trustees, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by, such indemnifying party by the Company or indemnified parties, by the Holders or the Trustees and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any investigation or proceedingProceeding.
(iie) The parties hereto Company, the Holders and the Trustees agree that it would not be just and equitable if contribution pursuant to this Section 7.4 7 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 in Section 7.4(i)7(d) above. Notwithstanding the provisions of this Section 7.47, an indemnifying party that is a Selling no Holder will not shall be required to contribute any amount in excess of the dollar amount by which the total price at which net proceeds (after deducting the underwriters’ discounts and commissions, if any) from the sale of the Registrable Securities sold by giving rise to such indemnifying party and distributed to the public were offered to the public contribution obligation exceeds the amount of any damages that such indemnifying party which 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. The Holders’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Registration Statement, and not joint. The remedies provided for in this Section 7 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.
(f) The indemnity and contribution provisions contained in this Section 7 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Trustees or any person controlling any Holder or Trustee, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (LDK Solar Co., Ltd.)
Indemnification; Contribution. 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 meaning of the Securities Act, and each officer, director, partner, employee and affiliate agent of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each Person who controls such 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 Selling Holders; provided, furtherhowever, that the indemnity agreement contained in this Section 7 7.1 shall not apply to any underwriter 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, or an omission or alleged omission to state a material fact, contained included 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 a purchaser of a Registrable Security subject to such person registration at or prior to the confirmation of sale to such person Person if such underwriter 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 Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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, employee and employee agent 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 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Moneygram Payment Systems Inc)
Indemnification; Contribution. If any Registrable Securities are included in 7.1 With respect to a registration statement under this Agreement:
7.1. To Shelf Registration Statement, to the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Participating Holder, each Person, if any, who controls such Selling Participating Holder within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Participating Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigationinvestigation (collectively, "Losses"), incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 Losses arise out of or are based upon any of the following statements, omissions or violations (collectively a “"Violation”"):
(ia) Any 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(iib) The 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 light of the circumstances under which they are made, not misleading; or
(iiic) Any any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable federal or state securities law or any rule or regulation promulgated under applicable to the Securities Act, the Exchange Act or any applicable state securities law arising from or Company relating to any action or inaction by the Company in connection with the offer and sale of Registrable Securities pursuant to this Agreementregistration effected by the registration statement; 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 Loss if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense Loss to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in any indemnification required by this Section 7 7.1 shall not apply to any underwriter Participating Holder to the extent that any such loss Loss is based on or arises out of (i) sales of Registrable Securities during any Suspension Period or (ii) 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 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 been delivered to any such Participating Holder but has not been sent or given by any such Participating Holder 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 soPerson alleging damage.
7.2. 7.2 To the extent permitted by applicable law, each Selling Participating Holder shall shall, severally and not jointly, indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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, Act against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, Losses incurred by the Company or such party Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which the Company or 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 Losses 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 arises out of or is based upon and in conformity with written information furnished by such Selling or on behalf of a Participating Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense Loss if such settlement is effected without the consent of the relevant Selling Holder of Registrable SecuritiesParticipating Holder, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity obligation under this Section 7.2 exceed the gross net proceeds from the applicable offering received by such Selling Participating Holder.
7.3. (a) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingthereof. The failure to deliver written notice to the indemnifying party within a reasonable time as soon as practicable following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 to the extent of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 forty five (3045) 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). .
(b) Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 (iiiii) 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 7.4 If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Losses referred to in this Section 7:
(ia) 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 or expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expensesLosses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i7.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6 The obligations of the Company and the Participating Holders under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by (i) Subject to applicable law, the Company shall will indemnify and hold harmless each Selling Holder of Registrable Securities (and each underwriter for such Holder (if any and if retained by the Holder)) being registered, and each Person, if any, person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, to the full extent lawful, from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities judgments, expenses and expenses (liabilities, joint or severalseveral (including any investigation, legal and other expenses incurred in connection with, and any amount paid in any settlement of, any action, suit or proceeding or any claim asserted), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, judgments, expenses or liabilities and expenses arise out of or are based upon on (A) 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, Registration Statement (including any related preliminary prospectus or final prospectus contained thereindefinitive Prospectus, or any amendments amendment or supplements thereto supplement to such Registration Statement or Prospectus), (B) any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) The 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 it not misleading; or
, or (iiiC) Any violation or alleged any violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law Blue Sky Laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 thereunder in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 shall Company will not apply be liable to amounts paid in settlement of any the extent that such loss, claim, damage, judgment, expense or liability arises from and is based on a material untrue statement or expense if settlement is effected without omission or alleged material untrue statement or omission made in reliance on and in conformity with information furnished in writing to the consent of the relevant Selling Company by such Holder, underwriter or controlling person expressly for use in such Registration Statement. Each Holder of Registrable SecuritiesSecurities will indemnify and hold harmless the Company, each other Holder of Registrable Securities and each person who controls any of them within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, judgments, expenses and liabilities, joint or several, to which consent shall not be unreasonably withheldthey, conditioned or delayedany 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, judgments, expenses and (y) liabilities arise solely by reason of a material untrue statement or omission made in no event shall reliance on and in conformity with information furnished in writing to the amount Company by such Holder for use in such Registration Statement. The obligations of any indemnity Holder under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party clause (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceedingi) shall be paid limited to the indemnified party, as incurred, within thirty (30) days net proceeds to such Holder of written notice thereof the Registrable Securities sold pursuant to the indemnifying party Registration Statement to which the loss, claim, damage, judgment, expense or liability relates.
(regardless of whether it is ultimately determined that an indemnified party is not entitled to ii) If the indemnification hereunder). Any such indemnified party shall have the right to employ separate counsel provided for in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless clause (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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party above for any settlement reason is held by a court of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not competent jurisdiction to be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, judgments, expenses or liabilities or expenses referred to in this Section 7:
(i) The therein, then each indemnifying partyparty under such paragraph, 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, judgments, expenses or liabilities or expenses in such proportion as is appropriate to reflect the relative fault fault, if any, of the indemnifying party Company and indemnified parties the other selling Holders in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company and indemnified parties the selling Holders shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by, such indemnifying party by the Company or indemnified parties, the selling Holders and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result of Company, the lossesHolders, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7.4 clause (ii) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding sentence. Notwithstanding The obligations of any Holder under this clause (ii) are several, not joint, and shall be limited to an amount equal to the provisions net proceeds to such Holder of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed pursuant to the public were offered Registration Statement to which the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue loss, claim, damage, judgment expense or alleged untrue statement or omission or alleged omissionliability relates. 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 guilty of such fraudulent misrepresentation.
(iii) If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any indemnified party with respect to which indemnity may be sought against the indemnifying party pursuant to this Section 12(f), such indemnified party shall promptly notify the indemnified party in writing and the indemnifying party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party and the indemnifying party shall be responsible for the payment of all fees and expenses; provided, however, that the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to any indemnified party (except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure). An indemnified party shall have the right to employ separate counsel in any such action or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (1) the indemnifying party agrees in writing to pay such fees and expenses, (2) the indemnifying party has failed promptly to assume the defense and employ counsel satisfactory to the indemnified party or (3) the named parties to any such action or proceeding (including any impleaded parties) include both the indemnified party and the indemnifying party and such indemnified party shall have been advised in writing by its counsel that representation of it and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation has been proposed) due to actual or potential differing interests between them (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party). It is understood that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for such indemnified parties which firm shall be designated in writing by the Holders of a majority in interest of the Registrable Securities on behalf of the Holders of all of the Registrable Securities, and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying party shall not be liable for any settlement of any such action effected without the written consent of the indemnifying party (which shall not be unreasonably withheld), but if settled with the written consent of the indemnifying party, or if there is a final judgment with respect thereto, the indemnifying party agrees to indemnify and hold harmless each indemnified party from and against any loss or liability by reason of such settlement or judgment. The indemnifying party shall not, without the prior written consent of each indemnified party affected thereby, effect any settlement of any pending or threatened proceeding in which such indemnified party has sought indemnity hereunder, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such action, claim, litigation or proceeding.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate 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 disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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”"):
(i1) Any untrue statement or alleged untrue statement of a material fact contained in such registration statementstatement as of the respective date thereof, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii2) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii3) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable under this Section 6(a) 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.,
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and Holder; each officer, director, partner, and employee of such other Selling Holder and such controlling PersonPerson and each underwriter to the extent that such Selling Holder participates in an underwritten registration, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 7.2 6(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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 6(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 76, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingat its own expense except as provided below. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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)6. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless party
(id) 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 76:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 6(a) and Section 7.26(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 6(d) were determined by pro rata allocation or by any other
(e) If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other method of allocation which does not take into account the equitable considerations consideration referred to in Section 7.4(i6(d). Notwithstanding ; provided, however, that if it is determined by a final and non-appealable order of a court of competent jurisdiction that a party receiving indemnification hereunder was not entitled to receive such indemnification, the provisions additional cost, if any, to the indemnifying party of such indemnification shall be promptly reimbursed by such improperly indemnified party to such indemnifying party.
(f) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute 6 shall survive the completion of any amount in excess offering of the amount by which the total price at which the Registrable Securities sold by such indemnifying party pursuant to a registration statement under this Agreement, and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentationotherwise.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the The Company shall agrees to indemnify and hold harmless each Selling HolderSandler ▇’▇▇▇▇▇ and its affiliates and their respective partners, each Persondirectors, if anyofficers, who controls such Selling Holder within the meaning of the Securities Actemployees, agents and controlling persons (Sandler ▇’▇▇▇▇▇ and each officer, director, partner, employee such person being an "Indemnified Party") harmless from and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damagesdamages and liabilities, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Indemnified Party may become subject under the Securities Act, the Exchange Act or other applicable federal or state lawslaw, insofar as such lossesor otherwise, claims, damages, liabilities and expenses arise related to or arising out of any actual or proposed Business Combination or alternative transaction or the engagement of Sandler ▇’▇▇▇▇▇ pursuant to, or the performance by Sandler ▇’▇▇▇▇▇ of the services contemplated by, this letter (collectively, the “Losses”), and will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are based upon incurred, including expenses incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party (collectively, the “Expenses”). The Company will not be liable under the foregoing indemnification provision to the extent that any Loss is found in a final judgment by a court of competent jurisdiction to have resulted proximately from (1) the bad faith of or (2) a material breach of this Agreement or (3) gross negligence or (4) or reckless or willful misconduct or (5) violation of law or regulation by the Indemnified Party. The Company further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company or any of the following statementsits affiliates, omissions creditors 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 any documents filed under state securities or “blue sky” laws in connection therewith;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to security holders for or in connection with the offer and sale engagement of Registrable Securities Sandler ▇’▇▇▇▇▇ pursuant to this Agreement; providedto, however, that or the indemnification required performance 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 consent Sandler ▇’▇▇▇▇▇ of the Company (which consent shall not be unreasonably withheldservices contemplated by, conditioned this letter or delayed)any actual or proposed Business Combination, nor shall the Company be liable in any such case for any such loss, claim, damage, liability alternative transaction 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 written information furnished to the Company by the indemnified party expressly for use other conduct in connection therewith except with such registration; provided, further, that the indemnity agreement contained in this Section 7 shall not apply respect to any underwriter 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, 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 those losses, claims, damagesdamages and liabilities, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant the Company that are found in a final judgment by a court of competent jurisdiction to have resulted proximately from the (1) bad faith of or (2) a breach of this Agreement or (3) gross negligence or (4) or reckless or willful misconduct or (5) violation of law or regulation by the Indemnified Party. In the event a court finds that any actual or threatened actionlosses, suit, proceeding or investigation, or to which claims damages and liabilities of the Company resulted from any of the foregoing Persons may otherwise become subject under acts of Sandler O’Neil enumerated in the Securities Actpreceding sentence, 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 ViolationCompany, in each case addition to any other rights it may have under this agreement, expressly reserves its rights to pursue any remedy in law or equity against Sandler ▇’▇▇▇▇▇ for breach of contract, for indemnification and otherwise to the fullest extent (provided by California law. In the event Sandler ▇’▇▇▇▇▇ appears as a witness in any action brought against the Company in which an Indemnified Party is not named as a defendant, the Company agrees to reimburse Sandler ▇’▇▇▇▇▇ for all reasonable expenses incurred and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished time expended by such Selling Holder expressly for use it in connection with such registration; provided, however, that (x) its appearing as a witness. The Company agrees to notify Sandler ▇’▇▇▇▇▇ promptly of the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement assertion against it or any other person of any such loss, claim, damage, liability claim or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation action or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have proceeding relating to any indemnified party otherwise than pursuant to transaction contemplated by this Section 7agreement. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred As used 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 partythis letter, 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7term:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate 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 disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 6 shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 expenses of investigation, incurred by such 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 7.2 6(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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 6(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 76, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingat its own expense except as provided below. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 76. Any fees and expenses 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 sixty (3060) 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, but in such event such amounts shall be refunded). Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 reasonable fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 76:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 6(a) and Section 7.26(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 6(d)(ii) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i6(d)(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6(d).
(f) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus Prospectus or final prospectus Prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 that occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 6 shall not apply to any underwriter Holder 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, 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 Holder was under an obligation to deliver such final prospectus and failed to do so.
7.2. 6.2 To the extent permitted by applicable law, each Selling the Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statementRegistration Statement, each Person, if any, who controls the Company 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)expenses, including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 7.2 6.2 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 Registrable Securities, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, conditioned or delayed, and (y) in no event shall the amount liability of any indemnity the Holder under this Section 7.2 exceed section 6.2 shall be limited in an amount equal to the gross net proceeds from the applicable offering received sale of the shares sold by such Selling Holder, unless such liability arises out of or is based on willful conduct or gross negligence by such Holder.
7.3. 6.3 Promptly after receipt by an indemnified party under this Section 7 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 76, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 76. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 6.4 If the indemnification required by this Section 7 6 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 76:
(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 or expenses in such proportion as is appropriate to reflect (i) the relative benefits received by the indemnifying party or parties, on the one hand and the indemnified party on the other, from the sale of the Registrable Securities, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party on the one hand and indemnified parties on the other in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 6.1 and Section 7.26.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 6.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i6.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5 Not withstanding the provisions of Section 6.4, a Holder shall not be required to contribute any amount or make any payment under this Agreement that in the aggregate exceed the net proceeds received by the Holder from the sales of the Registrable Securities.
6.6 The obligations of the Company and the selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Teraforce Technology Corp)
Indemnification; Contribution. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ , fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.law;
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 (i) occurs in reliance upon and in conformity with written information furnished by such Selling Holder expressly for use in connection with such registrationregistration or (ii) arises out of the failure to distribute by the Selling Holders (in the case of a non-underwritten offering) of any preliminary prospectus or prospectus made available by the Company to such Selling Holders which corrects an untrue statement or omission of a material fact contained in a previous preliminary prospectus; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually reasonably satisfactory to each of the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ , relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentationmisrepre- sentation.
7.5. If indemnification is available under this Section 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Aegis Consumer Funding Group Inc)
Indemnification; Contribution. If (a) Incident to any Registrable Securities are included in a registration statement under referred to in this Agreement:
7.1. To the extent permitted by Section 6, and subject to applicable law, the Company shall will indemnify and hold harmless each Selling Holderunderwriter, each PersonHolder of Registrable Securities (including its respective directors, if anyofficers, employees and agents) so registered, and each person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities ActAct or Section 20 of the Exchange Act of 1934, as amended, and each officerthe rules and regulations promulgated thereunder (the "Exchange Act"), director, partner, employee from and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (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), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
on (i) Any any untrue statement or alleged untrue statement of a material fact contained in such registration statement, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or any documents filed under state securities or “blue sky” laws in connection therewith;
prospectus), (ii) The 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; orin such document a
(iiia) Any violation or alleged violation by exceed the Company lesser of (i) that proportion of the 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 arising from or relating to or in connection with the offer and sale total of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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, damages or liabilities and expenses arise out of or are based upon any Violation, in each case indemnified against equal to the extent (and only to proportion of the extent) that total Registrable Securities sold under such Violation occurs in reliance upon and in conformity with written information furnished registration statement which is being sold by such Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 proceeds received by such Holder from its sale of Registrable Securities under 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldregistration statement.
7.4. (b) If the indemnification required provided for in subparagraph 6.6(a) above for any reason is held by this Section 7 from the indemnifying party is 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 in therein, then each indemnifying party under this Section 7:
(i) The indemnifying partyparagraph 6.6, 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 or 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 parties the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, 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 as 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 parties the underwriters shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue or relates to information supplied by, such indemnifying party alleged untrue statement of a material fact or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.omission
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding sentence. Notwithstanding the provisions of this Section 7.4In no event, an indemnifying party that is however, shall a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.under this subparagraph 6.6
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are ------------------------------ included in a registration statement under this Agreement:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate 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 disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification -------- ------- required by this Section 7.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent (and only to the extent) that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity -------- ------- agreement contained in this Section 7 6 shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 expenses of investigation, incurred by such 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 any 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 7.2 6(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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 6(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 76, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall -------- ------- have the right to retain its own counsel, with 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 proceedingat its own expense except as provided below. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and to the extent prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 76. Any fees and expenses 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 sixty (3060) 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, but in such event such amounts shall be refunded). Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 reasonable fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 76:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant -11- equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 6(a) and Section 7.26(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 6(d) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i6(d)(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6(d).
(f) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreementagreement:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 7.7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 7.7 shall not apply to any underwriter 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, 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 Person at or prior to the confirmation of sale to such person 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 distribution, their officers, directors, agents and employees and each Person who controls such 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 Selling Holders.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 7.2 7.7(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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 7.7(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 7.7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 77.7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 7.7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 77.7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 7.7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 77.7:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 7.7(a) and Section 7.27.7(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 7.7(d) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i7.7(d)(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 7.7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7.7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.7(d)(i).
(f) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 7.7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this agreement, and otherwise.
Appears in 1 contract
Sources: Preferred Share Purchase Agreement (California Real Estate Investment Trust)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.18.1. 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 meaning of the Securities Act, and each officer, director, partner, employee employee, agent and affiliate consultant of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; providedPROVIDED, howeverHOWEVER, that the indemnification required by this Section 7.1 SECTION 8.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; providedPROVIDED, furtherFURTHER, that the indemnity agreement contained in this Section 7 SECTION 8 shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.28.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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; providedPROVIDED, howeverHOWEVER, that (x) that the indemnification required by this Section 7.2 SECTION 8.2 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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, withheld and (y) in no event shall the amount of any indemnity under this Section 7.2 8.2 exceed the gross net proceeds from the applicable offering received by such Selling Holder.
7.38.3. Promptly after receipt by an indemnified party under this Section 7 SECTION 8 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7SECTION 8, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; PROVIDED, acting reasonably; provided, howeverHOWEVER, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 SECTION 8 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7SECTION 8. Any reasonable fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 17 PSYCH SYSTEMS HOLDINGS REGISTRATION RIGHTS AGREEMENT 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
Sources: Registration and Shareholders Rights Agreement (Aps Healthcare Inc)
Indemnification; Contribution. If (a) Incident to any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable lawfiled hereunder, the Company shall will indemnify and hold harmless each Selling Holder, including its partners, directors, officers, employees and agents, and each Person, if any, person who controls such Selling Holder any of them (a "Controlling Person") within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934,a s amended (the "Exchange Act"), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (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 are incurred), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
on (i) Any any untrue statement or alleged untrue statement of a material fact contained in such registration statement, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or any documents filed under state securities or “blue sky” laws in connection therewith;
prospectus), (ii) The 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 it not misleading; or
, or (iii) Any violation or alleged any violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or "blue sky" laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 thereunder in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 shall Company will not apply be liable to amounts paid in settlement of any the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged omission. No untrue statement or omission in the information furnished in writing to the Company by Holder or a Controlling Person guilty of fraudulent misrepresentation expressly for use in such registration statement, Holder will indemnify and hold harmless each underwriter, the Company (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.including its directors, officers, employees and agents), each
Appears in 1 contract
Indemnification; Contribution. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and reasonable expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 reasonable 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed)Company, nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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 Person at or prior to the confirmation of sale to such person 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 distribution, their officers, directors, agents and employees and each Person who controls such 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 Selling Holders.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 reasonable expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 reasonable 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross net proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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; provided, that such notice is accompanied by an appropriate undertaking to reimburse the indemnifying party (regardless of whether if 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (United States Cellular Corp)
Indemnification; Contribution. If 6.01. With respect to any registration, qualification or compliance effected or to be effected pursuant to this Agreement, AROC shall indemnify each holder of Registrable Securities whose 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 Holderor are to be included therein, each Personsuch holder's directors, if anyofficers, employees, stockholders, Affiliates and agents, each underwriter (as defined in the Securities Act) of the securities sold by such holder and each Person who controls such Selling Holder (within the meaning of the Securities Act) any such holder or underwriter, from and each officeragainst all claims, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, damages and liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 actions in respect thereof) arising out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):on:
(i) Any any untrue statement (or alleged untrue statement statement) of a material fact contained in such any prospectus, offering circular or other document (including without limitation any related registration statement, including any preliminary prospectus notification or final prospectus contained thereinthe like), or any amendments amendment thereof or supplements thereto supplement thereto, incident to any such registration, qualification or any documents filed under state securities or “blue sky” laws in connection therewithcompliance;
(ii) The any omission (or alleged omission omission) to state therein a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; or
(iii) Any violation or alleged any violation by the Company AROC of the 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 rule or regulation promulgated thereunder applicable to AROC, or of any blue sky or other state securities law arising from laws or relating any rule or regulation promulgated thereunder applicable to or AROC, and will reimburse each such Person entitled to indemnity under this Section 6.01 for all legal and other expenses reasonably incurred, as the same are incurred, in connection with the offer and sale of Registrable Securities pursuant to this Agreementinvestigating or defending any such claim, loss, damage, liability or action; 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 consent of the Company (which consent foregoing indemnity and reimbursement obligation shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense applicable to the extent that it any such claim, loss, damage or liability arises out of or is based upon a Violation which occurs on any untrue statement (or alleged untrue statement) or omission (or alleged omission) or violation made in reliance upon and in conformity with written information furnished to the Company AROC by the indemnified party expressly such holder specifically for use in connection with such registrationprospectus, offering circular, other document, amendment or supplement; provided, further, and provided further that the foregoing indemnity agreement contained in this Section 7 and reimbursement obligation shall not apply be applicable with respect to any underwriter preliminary prospectus to the extent that any such loss is based on loss, claim, damage, liability 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 preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy expense of the final prospectus has indemnitee results from the fact that a holder of Registrable Securities sold Registrable Securities to a person to whom there was not been sent or given to such person given, at or prior to the written confirmation of sale the sale, a copy of the prospectus (excluding documents incorporated by reference) or of the prospectus as then amended or supplemented (excluding documents incorporated by reference) if AROC has previously furnished copies thereof to the holder of Registrable Securities in compliance with Section 5 of this Agreement and the loss, claim, damage, liability or expense of the indemnitee results from an untrue statement or omission of a material fact contained in such person if such underwriter preliminary prospectus which was under an obligation to deliver such final corrected in the prospectus and failed to do so(or the prospectus as amended or supplemented).
7.26.02. To the extent permitted by applicable lawWith respect to any registration, qualification or compliance effected or to be effected pursuant to this Agreement, each Selling Holder holder of Registrable Securities which are included or are to be included in such registration, qualification or compliance shall indemnify and hold harmless the CompanyAROC, each of its directors, each of its officers who shall have signed the registration statementofficers, employees, stockholders, Affiliates and agents, each Personunderwriter (as defined in the Securities Act) of the securities of such holder, if any, each Person who controls the Company (within the meaning of the Securities Act, any other Selling Holder, any controlling Person of ) AROC or any such other Selling Holder underwriter from and each officeragainst all claims, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claimsdamages and liabilities (or actions in respect thereof) arising out of or based on:
(i) any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, damagesoffering circular or other document (including without limitation any related registration statement, liabilities and expenses (joint and severalnotification or the like), including attorneys’ fees and disbursements and expenses of investigationor any amendment thereof or supplement thereto, incurred incident to any such registration, qualification or compliance;
(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;
(iii) any violation by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any holder of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or any rule or regulation promulgated thereunder applicable to such holder, or of any blue sky or other federal state securities law or state lawsany rule or regulation promulgated thereunder applicable to such holder, insofar and will reimburse each such Person entitled to indemnity under this Section 6.02 for any legal and other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, expense, liability or action; or
(iv) with respect to any preliminary prospectus, the fact that any holder of Registrable Securities sold Registrable Securities to a person to whom there was not sent or given, at or prior to the written confirmation of the sale, a copy of the prospectus (excluding documents incorporated by reference) or of the prospectus as such lossesthen amended or supplemented (excluding documents incorporated by reference) if (a) AROC has previously furnished copies thereof to the holder of Registrable Securities in compliance with Section 5 of this Agreement and (b) the loss, claimsclaim, damagesdamage, liabilities and expenses arise out liability or expense of the indemnitee results from an untrue statement or are based upon any Violation, omission of a material fact contained in the preliminary prospectus which was corrected in the prospectus (or the prospectus as amended or supplemented); but in each case of the preceding subsections (i), (ii), (iii) and (iv), only to the extent (and only to the extent) that such Violation occurs untrue statement (or alleged untrue statement) or omission (or alleged omission) or violation is made in such prospectus, offering circular, other document, amendment or supplement in reliance upon and in conformity with written information furnished to AROC by such Selling Holder expressly holder specifically for use in connection with such registrationprospectus, offering circular, other document, amendment or supplement.
6.03. Each Person entitled to indemnification under this Section 6 (an "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after the Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, however, that:
(i) counsel for the Indemnifying Party who shall conduct the defense of any such claim or any litigation shall be approved by the Indemnified Party (which approval shall not be unreasonably withheld or delayed);
(ii) the Indemnified Party may participate in such defense at the Indemnified Party's expense; provided, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability Indemnified Party or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 Indemnified Parties shall have the right to employ a single law firm and a single local counsel law firm to represent it or them if, in the reasonable judgment of the Indemnified Party or Indemnified Parties, it is advisable for it or them to be represented by separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses by reason of such counsel shall be 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 having legal defenses available to it which are different from or in addition to those available to the indemnifying party Indemnifying Party, and in 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 event the reasonable fees and expenses of more than one separate such law firm and one such local law firm shall be paid by the Indemnifying Party; and
(iii) failure of attorneys (together with appropriate local counsel) at any time for all such indemnified partiesIndemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 6. No Indemnifying Party, unless in the reasonable judgment defense of any 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 proceedinglitigation, in which event shall, except with the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying partyIndemnified Party to which such claim or litigation relates, which consent to entry of any judgment or enter into any settlement unless such settlement relieves the Indemnified Party of any and all liability. Each Indemnified Party shall not furnish such information regarding itself for the claim in question as an Indemnifying Party may reasonably request in writing and as shall be unreasonably withheldreasonably required in connection with defense of such claim in litigation resulting therefrom.
7.46.04. If the indemnification required by this indemnity and reimbursement obligation provided for in each of Section 7 from the indemnifying party 6.01 and Section 6.02 is unavailable or insufficient to hold harmless an indemnified party hereunder Indemnified Party in respect of any claims, losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) referred to in this Section 7:
(i) The indemnifying partytherein, in lieu of indemnifying such indemnified party, then the Indemnifying Party shall contribute to the amount paid or payable by such indemnified party the Indemnified Party as a result of such claims, losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party, on the one hand, and indemnified parties the Indemnified Party, on the other hand, in connection with the actions statements or omissions which resulted in such claims, losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, 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 party by the Indemnifying Party or indemnified parties, the Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid untrue statement or payable by a party as a result of omission, the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 7.4 6.04 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 in Section 7.4(i). Notwithstanding the provisions first sentence of this Section 7.4, 6.04. The amount paid by an indemnifying party that is Indemnified Party as a Selling Holder will not be required to contribute any amount in excess result of the amount by which losses, claims, damages or liabilities referred to in the total price at which the Registrable Securities sold first sentence of this Section 6.04 shall be deemed to include any legal and other expenses reasonably incurred by such indemnifying party and distributed to Indemnified Party in connection with investigating or defending any claim, loss, damage, liability or action which is the public were offered to the public exceeds the amount subject of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionthis Section 6.04. No Person Indemnified Party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who the Indemnifying Party if the Indemnifying Party was not guilty of such fraudulent misrepresentation. The provisions of this Section 6 shall be in addition to any other rights to indemnification or contribution which an indemnified party may have pursuant to law, equity, contract or otherwise and shall remain in full force and effect regardless of any investigation made by or on behalf of an Indemnified Party and shall survive the transfer of the shares of Common Stock or other stock or securities which may be issued upon exercise of the Warrants.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.16.1. 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 meaning of the Securities 1933 Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities 1933 Act, the Exchange 1934 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”"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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the Securities 1933 Act, the Exchange 1934 Act, any applicable state securities law or any rule or regulation promulgated under the Securities 1933 Act, the Exchange 1934 Act or any applicable state securities law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; providedPROVIDED, howeverHOWEVER, that the indemnification required by this Section 7.1 SECTION 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue registration 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.
7.26.2. To the extent permitted by applicable law, each Selling Holder Holder, severally and not jointly, shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities 1933 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 1933 Act, the Exchange 1934 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; providedPROVIDED, howeverHOWEVER, that (x) the indemnification required by this Section 7.2 SECTION 6.2 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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 SECTION 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.36.3. Promptly after receipt by an indemnified party under this Section 7 SECTION 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7SECTION 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 SECTION 6 to the extent of such material prejudice resulting therefrom, but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7SECTION 6. Any fees and expenses 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)party. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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, unless it otherwise agrees, 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 such additional counsel or counsels), then, and in the case of clauses (i), (ii) and (iii) above, the indemnifying party shall pay all such fees and expenses. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.46.4. If the indemnification required by this Section 7 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7SECTION 6:
(ia) 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 SECTION 6.1 and Section 7.2SECTION 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 SECTION 6.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(iSECTION 6.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities 1933 Act) shall be entitled to contribution entitle▇ ▇▇ ▇ontribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this SECTION 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this SECTION 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in SECTION 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this SECTION 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Falcon Bay Operating LLC)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.16.1. 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 meaning of the Securities Act, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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) 6.1.1. 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 any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) 6.1.2. The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) 6.1.3. Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; provided, however, that the indemnification required by this Section 7.1 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 6 shall not apply to any underwriter 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, 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.
7.26.1.4. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 7.2 6.1 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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 6.1 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.36.2. Promptly after receipt by an indemnified party under this Section 7 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 76, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 76. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.46.3. If the indemnification required by this Section 7 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 76:
(i) 6.3.1. 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 6.1 and Section 7.26.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) 6.3.2. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 6.3 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i)6.3.1. Notwithstanding the provisions of this Section 7.46.3, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.4. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.3.
6.5. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (PowerUp Acquisition Corp.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 5.1 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 meaning of the Securities Act, ; and each officer, director, partner, partner and employee and affiliate of such Selling Holder and such controlling Person, ; against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, to the Exchange Act or other federal or state laws, insofar as extent 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) 5.1.1 Any untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus or final prospectus contained thereinProspectus, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) 5.1.2 The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) 5.1.3 Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned withheld or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense incurred by a Selling Holder (or any Person, if any, who controls such Selling Holder within the meaning of the Securities Act, or any officer, director, partner and employee of such Selling Holder and such controlling Person) to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written the Holder Information or other information furnished to the Company by the indemnified party or on behalf of such Selling Holder expressly for use 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 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 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 soRegistration Statement.
7.2. 5.2 To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, ; each of its directors, each of its officers who shall have signed the registration statement, Registration Statement; each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigationexpenses, incurred by such 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, to the Exchange Act or other federal or state laws, insofar as extent 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 the Holder Information or other information furnished to the Company by such or on behalf of that Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling HolderRegistration Statement.
7.3. 5.3 Promptly after receipt by an indemnified party under this Section 7 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 75, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so 26 desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure of an Indemnified Party to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the 5 unless such failure is prejudicial to such indemnifying party of any liability that it may have party's ability to any indemnified party otherwise than pursuant to this Section 7defend such action. Any fees and expenses 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) 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses expenses, or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding 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 which 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 would 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldwithheld or delayed.
7.4. 5.4 If the indemnification required by this Section 7 5 from the indemnifying party is determined by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 75:
(i) 5.4.1 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 5.1 and Section 7.25.2, any legal or other fees or expenses reasonably incurred by such party 27 in connection with any investigation or proceeding.
(ii) 5.4.2 The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 5.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission5.4.
1. 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 a fraudulent misrepresentation.
5.5 If indemnification is available under this Section 5, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 5 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 5.4.
5.6 The obligations of the Company and the Selling Holders under this Section 5 shall survive the completion of any offering of Registrable Shares pursuant to the Registration Statement and any termination of this Agreement.
Appears in 1 contract
Sources: Stock Agreement (Starwood Hotel & Resorts Worldwide Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the (a) The Company shall will indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, holder and each officeraffiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, director, partner, employee and affiliate of such Selling Holder and such controlling Person, or under any Blue Sky Law or regulation against any and all losses, claims, damages, liabilities and expenses (or liabilities, joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such holder may become subject under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such losses, claims, damages, or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
(i) Any an untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus Offering Memorandum or final prospectus contained thereinany amendment or supplement thereto, or any amendments arise out of or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) The are based upon 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
(iii) Any violation , and will reimburse each such holder and affiliate for any legal or alleged violation other expenses reasonably incurred by the Company of the 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 arising from or relating to or such holder in connection with investigating or defending any such action or claim regardless of the offer and sale negligence of Registrable Securities pursuant to this Agreementany such holder or affiliate; provided, however, that the indemnification required by this Section 7.1 Company shall not apply be liable in any such case to amounts paid in settlement of the extent that any such loss, claim, damage, or liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary Offering Memorandum, or any such amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the indemnified party any such holder expressly for use therein.
(b) Each holder of Common Stock registered pursuant to this Agreement will indemnify and hold harmless the Company against any losses, claims, damages, or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages, or liabilities (or actions in 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 respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material factfact contained in any Offering Memorandum, or an omission any amendment 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 statementsupplement thereto, 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 Violationthe omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent (and extent, but only to the extent) , that such Violation occurs untrue statement or alleged untrue statement or omission or alleged omission was made in any Offering Memorandum, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by such Selling Holder holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holderherein.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 of notice Sections 3(a) and (b) above of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make shall, if a claim under this Section 7, such indemnified party shall deliver in respect thereof is to be made against the indemnifying party a written notice under either such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability that it may otherwise have 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 and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, be entitled to assume the defense thereof with counsel mutually satisfactory by notice in writing to the parties, acting reasonably; provided, however, that an indemnified party. After notice from the indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party shall have the right not be liable to retain its own counselsuch indemnified party under either of such subsections of any legal expenses of other counsel or any other expense, in each case subsequently incurred by such indemnified party, in connection with the fees and disbursements and expenses defense thereof other than reasonable costs of investigation incurred prior to be paid the assumption by the indemnifying party, if unless such expenses have been specifically authorized in writing by the indemnifying party, the indemnifying party has failed to assume the defense or employ counsel, or the named parties to any such action include both the indemnified party and the indemnifying party, as appropriate, and such indemnified party has been advised by counsel that the representation of such indemnified party has been advised by counsel that the counsel retained by representation of such indemnified party and the indemnifying party by the same counsel that the representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such them, in each of which cases the fees of counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to for the indemnified party under will be paid by the indemnifying party.
(d) If the indemnification provided for in this Section 7 but shall not relieve the indemnifying party of any liability that it may have 3 is unavailable or insufficient to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 hold harmless an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (iunder Section 3(a) the indemnifying party has agreed to pay such fees and expenses or (iib) 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, or liabilities (or expenses action in respect thereof) referred to in this Section 7:
(i) The therein, then 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, or liabilities (or expenses 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 parties the holders in connection with the actions which statement or omissions that resulted in such losses, claims, damages, or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue or relates alleged untrue statement of a material fact or the omission or alleged omission to the state a material fact related to information supplied by, such indemnifying party by the Company or indemnified parties, the holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto holders agree that it would not be just and equitable if contribution pursuant to this Section 7.4 3(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 that does not take into account the equitable considerations referred to above in this subsection (d). Except as provided in Section 7.4(i8(c). Notwithstanding , 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 7.4, an indemnifying party that is a Selling Holder will not 8(d) shall be required deemed to contribute include any amount in excess of the amount by which the total price at which the Registrable Securities sold legal or other expenses reasonably incurred by such indemnifying indemnified party and distributed to the public were offered to the public exceeds the amount of in connection with investigation or defending any damages that such indemnifying party has otherwise been required to pay by reason of such untrue action 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. Notwithstanding any provision in this Section 8(d) 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.
(e) The obligations of the Company under this Section 3 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any holder of Warrants within the meaning of the Act. The obligations of the holders of Common Stock under this Section 3 shall be in addition to any liability that such holders may otherwise have and shall extend, upon the same terms and conditions to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Sources: Warrant Agreement (Cd Warehouse Inc)
Indemnification; Contribution. If (a) Incident to any registration of any Registrable Securities are included in a registration statement under the Securities Act pursuant to this Agreement:
7.1. To the extent permitted by applicable law, the Company shall will indemnify and hold harmless each Selling Holderunderwriter, each PersonHolder who offers or sells any such Registrable Securities in connection with such registration statement, if anyincluding its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees, representatives and agents of any of them (a "SELLING HOLDER"), and each person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities ActAct or Section 20 of the Exchange Act (a "CONTROLLING PERSON"), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (including any investigation, legal and other expenses reasonably 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), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise ("INDEMNIFIABLE CLAIMS"), insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
on (i) Any any untrue statement or alleged untrue statement of a material fact contained in such registration statement, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or any documents filed under state securities or “blue sky” laws in connection therewith;
prospectus), (ii) The 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 it not misleading; or
, (iii) Any any violation or alleged violation by the Company of the 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 arising from law, (iv) any failure to register or relating to or in connection with qualify the offer and sale of Registrable Securities pursuant in any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company (the undertaking of any underwriter chosen by the Company being attributed to this Agreementthe Company) will undertake such registration or qualification on the Selling Holder's behalf (provided that in such instance the Company shall not be so liable if it has undertaken its best efforts to so register or qualify the Registrable Securities), or (v) any blue sky application or other document executed by the Company specifically for the purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof; providedPROVIDED, howeverHOWEVER, that the indemnification required by this Section 7.1 shall Company will not apply be liable to amounts paid in settlement of any the extent that such loss, claim, damage, expense or liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 from and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 untrue statement or omission or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, fact contained in such registration statement or omitted from any preliminary prospectus if omission made in reliance on and in conformity with information furnished in writing to the final prospectus shall correct Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of untrue statement or omission in the final prospectus has not been sent or given to such person at or prior information furnished in writing to the confirmation of sale to Company by such person if such underwriter 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 expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each underwriter, the Company, each of Company (including its directors, each of its officers who shall have signed the registration statementofficers, employees, representatives and agents), each Personother Holder (including its partners (including partners of partners and stockholders of such partners) and directors, if anyofficers, who controls the Company within the meaning employees, representatives and agents of the Securities Actany of them, any other Selling Holder, any controlling and each Controlling Person of any such other Selling Holder of them), from and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, insofar as such losses, claims, damages, liabilities and expenses arise out of at common law or are based upon any Violation, in each case otherwise to the same extent (and only to provided in the extentimmediately preceding sentence. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 5(a) that such Violation occurs in reliance upon and in conformity with written information furnished exceed the net proceeds received by such Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder from its sale of Registrable SecuritiesSecurities under such registration statement, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) except in no event shall the amount case of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holderwillful fraud.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceedingb) 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required provided for in Section 5(a) above for any reason is held by this Section 7 from the indemnifying party is 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 in therein, then each indemnifying party under this Section 7:
(i) The indemnifying party5, 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 or expenses in such proportion as is appropriate to reflect (i) the relative benefits received by the Company, the Selling Holders and the underwriters from the offering of the Registrable Securities and (ii) the relative fault of the indemnifying party Company, the Selling Holders and indemnified parties the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, as well as any other relevant equitable considerations; PROVIDED, HOWEVER, that in the event of a registration statement filed in response to a demand for registration under Section 3(a) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed solely 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 parties the underwriters shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Company, such indemnifying party the Selling Holders or indemnified parties, the underwriters and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto Selling Holders agree that it would not be just and equitable if contribution pursuant to this Section 7.4 5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4In no event, an indemnifying party that is however, shall a Selling Holder will not be required to contribute any amount under this Section 5(b) in excess of the amount net proceeds received by which the total price at which the such Selling Holder from its sale of Registrable Securities sold by under such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party 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.
(c) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 5 shall be 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, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. No indemnifying party, in the 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.
(d) Promptly after receipt by an indemnified party of any Indemnifiable Claim, the indemnified party shall give notice thereof in writing to the Company; PROVIDED, HOWEVER, the failure to give such notice shall not relieve the Company from its obligations under this Section 5 except to the extent that the Company shall have been materially and adversely prejudiced as a result of the failure or delay in giving such notice. In any proceeding involving an Indemnifiable Claim, the Company shall control the defense thereof; provided that, the indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the Company shall pay as incurred the fees and expenses of the counsel retained by the indemnified party in the event that (i) the Company 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 Company and the indemnified party and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in an underwriting agreement entered into by the Company in connection with an underwritten public offering in which the Holders or the Founder seek to include the Registrable Securities or the Founder Registrable Securities pursuant to Section 2 hereof are in conflict with the foregoing provisions, the provisions of the underwriting agreement shall control. The Company shall not, without the prior written consent of any indemnified party, consent to the entry of any judgment against the indemnified party or enter into any settlement or compromise which (i) includes an admission of fault of the indemnified party or (ii) does not include, as an unconditional term thereof, the full release of the indemnified party from all liability in respect of such Indemnifiable Claim, which release shall be in form and substance reasonably satisfactory to the indemnified party.
Appears in 1 contract
Sources: Registration Rights Agreement (Hittite Microwave Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 5.1 To the extent permitted by applicable law, the Company Parent shall indemnify and hold harmless each Selling Holder, ; each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, ; and each officer, director, partner, partner and employee and affiliate of such Selling Holder and such controlling Person, ; against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigationexpenses, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, to the Exchange Act or other federal or state laws, insofar as extent 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) 5.1.1 Any untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus or final prospectus contained thereinProspectus, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) 5.1.2 The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; provided, however, that the indemnification required by this Section 7.1 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed)Parent, nor shall the Company Parent 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 written the Holder Information or other information furnished to the Company Parent by the indemnified party or on behalf of a Selling Holder expressly for use 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 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 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 soRegistration Statement.
7.2. 5.2 To the extent permitted by applicable law, each Selling Holder shall shall, severally and not jointly, indemnify and hold harmless the Company, Parent; each of its directors, each of its officers who shall have signed the registration statement, Registration Statement; each Person, if any, who controls the Company Parent 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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, to the Exchange Act or other federal or state laws, insofar as extent 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 Holder Information or other information furnished to Parent by or on behalf of such Selling Holder expressly for use in connection with such registrationthe Registration Statement; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall any Selling Holder be responsible for any amount payable as damages in any such action or suit in an amount in excess of the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling HolderHolder from the sale of its Registerable Shares.
7.3. 5.3 Promptly after receipt by an indemnified party under this Section 7 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 75, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 5 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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)5. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses expenses, or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 5.4 If the indemnification required by this Section 7 5 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 75 as a matter of law or public policy:
(i) 5.4.1 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 5.1 and Section 7.25.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) 5.4.2 The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 5.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission5.4.1. 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 a fraudulent misrepresentation.
5.5 If indemnification is available under this Section 5, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 5 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 5.4.
5.6 The obligations of Parent and the Selling Holders under this Section 5 shall survive the completion of any offering of Registrable Shares pursuant to the Registration Statement and any termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (THQ Inc)
Indemnification; Contribution. If any Registrable Securities are included in a Upon the registration statement under of the Shares pursuant to this Agreement:
7.15.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling the Holder, each Person, if any, who controls such Selling the Holder within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling the Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; providedPROVIDED, howeverHOWEVER, that the indemnification required by this Section 7.1 SECTION 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; providedPROVIDED, furtherFURTHER, that the indemnity agreement contained in this Section 7 SECTION 5 shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Holder.
7.25.2. To the extent permitted by applicable law, each Selling the Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statementRegistration Statement, each Person, if any, who controls the Company 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 partner or 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 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 the Holder expressly for use in connection with such registrationthe registration of the Shares; providedPROVIDED, howeverHOWEVER, that (x) the indemnification required by this Section 7.2 SECTION 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 consent of the relevant Selling Holder of Registrable SecuritiesHolder, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 SECTION 5.2 exceed the gross proceeds from the applicable offering received by such Selling the Holder.
7.35.3. Promptly after receipt by an indemnified party under this Section 7 SECTION 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7SECTION 5, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; PROVIDED, acting reasonably; provided, howeverHOWEVER, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 SECTION 5 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7SECTION 5. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses or expenses, (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.45.4. If the indemnification required by this Section 7 SECTION 5 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7SECTION 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 SECTION 5.1 and Section 7.2SECTION 5.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 SECTION 5.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(iSECTION 5.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 5, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this SECTION 5 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in SECTION 5.4.
5.6. The obligations of the Company and the Holder under this SECTION 5 shall survive the completion of any offering of Shares pursuant to the Registration Statement and otherwise.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) The Company agrees, to the maximum extent permitted by applicable law, the Company shall to indemnify and hold harmless (i) each Selling Holder, (ii) each Personother Person who participates as an underwriter in the offering or sale of such securities, (iii) each person, if any, who controls such Selling Holder (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 each officeragents of any such Holder or underwriter or any controlling person (any person referred to in clause (i), director(ii), partner(iii) or (iv) may hereinafter be referred to as an “indemnified Person”), employee from and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (liabilities, judgments or expenses, joint or severalseveral (or actions or proceedings, whether commenced or threatened, in respect thereof), including including, without limitation, interest, penalties, and attorneys’ fees and disbursements and expenses of investigationdisbursements, asserted against, resulting to, imposed upon or incurred by such party pursuant to any actual or threatened actionindemnified Person (collectively, suit“Claims”), proceeding or investigation, or to which any such indemnified Person may become subject, directly or indirectly, under either Section 15 of the foregoing Persons may become subject under the Securities Act, Act or Section 20 of the Exchange Act or other federal or state lawsotherwise, insofar as such losses, claims, damages, liabilities and expenses Claims arise out of or are based upon upon, or are caused by 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 Registration Statement or final prospectus contained thereinProspectus (or any amendment or supplement thereto), or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) 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
(iii) Any violation , or alleged a violation by the Company of the Securities Act, the Exchange Act, Act or any applicable state securities law law, or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law, or any other law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished applicable to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 shall not apply relating to any underwriter to the extent that any such loss is based on registration or arises out of an untrue statement or alleged untrue statement of a material factqualification, 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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, except insofar as such losses, claims, damages, liabilities and liabilities, judgments or expenses arise out of any such indemnified Person; (x) are caused by any such untrue statement or are omission or alleged untrue statement or omission that is based upon any Violation, information relating to such indemnified Person furnished in each case writing to the extent (and only to the extent) that Company by or on behalf of any of such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder indemnified Person expressly for use in connection with such registrationtherein; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) with respect to the preliminary Prospectus in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds a non-underwritten offering, resulting from the applicable offering received by fact that such Selling Holder.
7.3. Promptly after receipt 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 party under this Section 7 Person of any Prospectus when, upon receipt of a notice from the Company of the commencement existence of any actionfact of the kind described in Section 2.5(d)(iv), suit, proceeding, 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 threat thereof made in writing for 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 such indemnified party indemnity may make a claim under this Section 7be sought against the Company, such indemnified party Person shall deliver to promptly notify the indemnifying party a written notice of the commencement thereof Company and the indemnifying party Company shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually reasonably satisfactory to the partiesindemnified Persons, acting reasonably; provided, however, it being understood and agreed that an the Company’s regular outside counsel is acceptable for such purpose. Such indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 Person shall have the right to employ separate counsel in any such action, claim or proceeding action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such the indemnified party Person unless (i) the indemnifying party has agreed to pay employment of such fees and expenses or counsel shall have been specifically authorized in writing by the Company, (ii) the indemnifying party Company shall have failed to promptly assume the defense of such action, claim or proceeding and employ counsel or (iii) the named parties to any such action, claim or proceeding action (including any impleaded implied parties) include both such the indemnified party Person and the indemnifying party, Company and such the indemnified party 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 in addition additional 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 partyCompany, it being understood, however, that the indemnifying party Company shall not, in connection with any one such action, claim action or proceeding or separate but substantially similar or related actions, claims actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all the indemnified Persons, which firm shall be (x) designated by such indemnified partiesPersons who sold a majority of the Registrable Securities which are subject to the Registration Statement giving rise to the particular indemnity claim (provided that if Advent, unless in any Advent Stockholder or any person affiliated with Advent is an indemnified Person, then Advent shall designate such counsel) and (y) reasonably satisfactory to 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 Company. The Company shall be obligated to pay the fees and expenses of such additional counsel or counsels). No indemnifying party shall not be liable to an indemnified party for any settlement of any action, such action or proceeding or claim effected without the Company’s prior written consent of the indemnifying partyconsent, 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 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.
7.4(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 the foregoing indemnity from the Company to each of the indemnified Persons, but only (i) losses, claims, damages, liabilities, judgments or expenses (x) that are caused by any untrue statement or omission or alleged untrue statement or omission that is based upon 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 preliminary Prospectus in a non-underwritten offering, which 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) which result from 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 2.5(b)(iv), the indemnified Person or the related Holder was not permitted to do so, and (ii) to the extent of the net cash proceeds, if any, received by such Holder from the sale or other disposition of his or its Registrable Securities covered by such Registration Statement. In case any 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 covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.8(a) (except that the Holder may but shall not be required to assume the defense thereof), and the 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 any investigation made by or on behalf of any the Company or any other indemnified Person and shall survive the transfer of securities by any applicable Holder.
(c) If the indemnification required by provided for in this Section 7 from the indemnifying party 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 this Section 7:
(i) The indemnifying partythe case 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 liabilities, judgments or expenses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company and indemnified parties such Holder in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities liabilities, judgments or expenses, 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 fault referred to in clause (i) above but also the relative benefits received by the Company on the one hand and the Holder on the other hand from sale of Registrable Securities 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 parties Holder on the other shall be determined by reference to, among other things, whether any Violation has been committed by, 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, by the Company or by such indemnifying party or indemnified parties, Holder and the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 2.9(a) and Section 7.22.9(b), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any investigation action or proceeding.
(ii) claim. 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 7.4 2.9(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 the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling 2.9(c) no Holder will not (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 sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that which such indemnifying party 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 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. The indemnity, and contribution provisions contained in this Section 2.9 are in addition to any liability which the indemnifying person may otherwise have to the indemnified persons referred to above.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Registerable 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 result directly from 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed)Company, nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall severally indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 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 consent of the relevant Selling Holder of Registrable Registerable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Selling Holders of Registerable Securities under this Section 7 shall survive the completion of any offering of Registerable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Indemnification; Contribution. If (a) In the event of any Registrable registration of any equity securities of the Corporation under the Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by Act or applicable lawCanadian securities Laws, the Company shall Corporation will, and hereby does, indemnify and hold harmless each Selling Holderharmless, in the case of any registration statement filed pursuant to Section 2 or 3 hereof, the seller of any Registrable Shares covered by such registration statement, its respective affiliates, directors and officers, each other Person who participates as an underwriter in the offering or sale of such securities, each officer and director of each such underwriter, each other Person, if any, who controls such Selling Holder seller or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and each officer, director, partner, employee Person affiliated with or retained by such seller and affiliate of such Selling Holder and such controlling Personwho may be subject to liability under applicable securities Laws, against any and all losses, claims, damages, liabilities and expenses (expenses, joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of the foregoing Persons them may become subject under the Securities Act, the Exchange Act applicable Canadian securities Laws or other federal or state lawsotherwise, insofar as such losses, claims, damages, liabilities and or expenses (or actions or proceedings in respect thereof) 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 any material fact contained in any registration statement under which such registration statementsecurities were registered under the Securities Act, including any preliminary prospectus, final prospectus or final summary prospectus contained included therein, or any amendments amendment or supplements thereto supplement thereto, or any documents filed under state securities or “blue sky” laws in connection therewith;
document incorporated by reference therein, (ii) The any 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
, or (iii) Any violation or alleged any violation by the Company Corporation of the 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 arising from or Laws relating to action or inaction required by the Corporation in connection with the offer and such offer, sale of Registrable Securities pursuant to this Agreementor other disposition under such Laws; provided, however, that the indemnification required by this Section 7.1 Corporation shall not apply be liable in any such case to amounts paid in settlement of the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 (x) an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly Corporation for use in connection with the preparation thereof by such registration; providedseller or underwriter, furtheras the case may be, 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 (y) an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained made 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 but notified to such person at or seller and underwriter prior to any sale or other disposition of Registrable Shares and subsequently corrected by the confirmation of sale Corporation in any final prospectus, amendment or supplement made available to such person if seller or underwriter but which final prospectus, amendment or supplement was not used by such seller or underwriter was under an obligation in the sale or other disposition of Registrable Shares that gave rise to deliver such final prospectus loss, claim, damage, liability (or action or proceeding in respect thereof) or expense. This indemnity shall be in addition to any liability the Corporation may otherwise have. Such indemnity shall remain in full force and failed to do soeffect regardless of any investigation made by or on behalf of such seller or any such director, officer, underwriter or controlling Person and shall survive the transfer of such securities by such seller. The Corporation shall reimburse indemnifiable expenses hereunder as and when incurred.
7.2. To (b) The Corporation may require, as a condition to including any Registrable Shares in any registration statement filed pursuant to Section 2 or 3 hereof, that the extent permitted by applicable lawCorporation shall have received an undertaking satisfactory to it from (i) the prospective seller of such securities, each Selling Holder shall to indemnify and hold harmless (in the Companysame manner and to the same extent as set forth in Section 7(a), except that any such prospective seller shall not in any event be liable to the Corporation pursuant thereto for an amount in excess of the net proceeds of the sale of such prospective seller's Registrable Shares so to be sold) the Corporation, each such underwriter of its directorssuch securities, each officer and director of its officers who shall have signed the registration statement, each such underwriter and each other Person, if any, who controls the Company Corporation or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and (ii) each such underwriter of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 7(a) above) the Corporation, each officer and director of the Corporation, each prospective seller, each officer and director of each prospective seller and each other Person, if any, who controls the Corporation or any other Selling Holdersuch prospective seller within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect to any untrue statement in or omission from such registration statement, any controlling Person of any such other Selling Holder and each officerpreliminary prospectus, 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual final prospectus or threatened action, suit, proceeding or investigationsummary prospectus included therein, or to which any of the foregoing Persons may otherwise become subject under the Securities Actamendment or supplement thereto, the Exchange Act if such untrue statement 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 omission was made in reliance upon and in conformity with written information furnished by such Selling Holder expressly prospective seller or such underwriter, as the case may be, to the Corporation for use in connection with the preparation of such registration; providedregistration statement, howeverpreliminary prospectus, that (x) the indemnification required by this Section 7.2 final prospectus, summary prospectus, amendment or supplement. Such indemnity shall not apply to amounts paid remain in settlement full force and effect regardless of any such loss, claim, damage, liability investigation made by or expense if settlement is effected without the consent on behalf of the relevant Selling Holder Corporation or any such director, officer or controlling Person and shall survive the transfer of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received such securities by such Selling Holderseller.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any actionaction or proceeding (including any governmental investigation) involving a claim referred to in either Section 7(a) above or (b) above, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding provisions of this Section 7, such indemnified party shall deliver except to the extent that the indemnifying party a written notice of the commencement thereof and is materially prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, the indemnifying party shall have be entitled to assume the right to participate in, and, to the extent the indemnifying party so desiresdefense thereof, jointly with any other indemnifying party similarly noticednotified, to the extent that it may wish, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof with counsel mutually satisfactory to the partiesthereof, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses to be paid by the indemnifying party, if representation of party will not be liable to such indemnified party for any legal or other expenses subsequently incurred by the counsel retained by indemnified party in connection with the indemnifying party would be inappropriate due to actual or potential differing interests defense thereof. If, in the indemnified party's reasonable judgment, a conflict of interest between such indemnified party and any other party represented by indemnifying parties may exist in respect of such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such actionclaim, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees thereof and expenses of such counsel shall be 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 which 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 counsel for all such indemnified partiessellers of Registrable Shares, unless or more than one counsel for the underwriters in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and connection with any other of such indemnified parties with respect to such action, claim one action or proceeding, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel separate but similar or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldrelated actions.
7.4. (d) If the indemnification required by provided for in the foregoing clauses (a), (b) and (c) of this Section 7 from the indemnifying party is unavailable to an the indemnified party hereunder parties in respect of any losses, claims, damages, damages or liabilities or expenses referred to in this Section 7:
(i) The therein, then each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount amounts paid or payable by such indemnified party parties as a result of such losses, claims, damagesdamages or liabilities (i) as between the Corporation and the holders of Registrable Shares covered by a registration statement, liabilities on the one hand, and the underwriters, on the other, in such proportion as is appropriate to reflect the relative benefits received by the Corporation and such holders, on the one hand, and the underwriters, on the other, from the offering of the Registrable Shares, or expenses if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits but also the relative fault of the Corporation and such holders, on the one hand, and of the underwriters, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations, and (ii) as between the Corporation, on the one hand, and each holder of Registrable Shares covered by a registration statement, on the other, in such proportion as is appropriate to reflect the relative fault of the indemnifying party Corporation and indemnified parties of each such holder in connection with the actions which resulted in such losses, claims, damages, liabilities statements or expensesomissions, as well as any other relevant equitable considerations. The relative benefits received by the Corporation and such holders, on the one hand, and the underwriters, on the other, shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Corporation and such holders bear to the total underwriting discounts and commissions received by the underwriters. The relative fault of the Corporation and such indemnifying party holders, on the one hand, and indemnified parties of the underwriters, on the other, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Corporation and such holders or by the underwriters. The relative fault of the Corporation, on the one hand, and of each such indemnifying party holder, on the other, shall be determined by reference to, among other things, whether the untrue or indemnified partiesalleged untrue statement of a material fact relates to information supplied by such party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceedingomission.
(iie) The parties hereto Corporation and the holders of Registrable Shares agree that it would not be just and equitable if contribution pursuant to this Section 7.4 7(d) were determined by pro rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to in Section 7.4(i)the next preceding paragraph. Notwithstanding the provisions of this Section 7.47(d), an indemnifying party that is a Selling Holder will not no holder of Registrable Shares shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by Shares of such indemnifying party and distributed to the public holder were offered to the public exceeds the amount of any damages that such indemnifying party 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. The obligation of the holders of Registrable Shares to contribute pursuant to this Section 7 is several in the proportion that the proceeds of the offering received by such holder bears to the total proceeds of the offering received by all Holders and not joint.
(f) All sums payable by an indemnifying party to an indemnified party under this Agreement shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by law. If any deductions or withholdings are required by law, the indemnifying party shall be obliged to pay to the indemnified party such sums as will, after such deduction or withholding has been made, leave the indemnified party with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.
(g) If any taxing authority otherwise assesses any tax on any sum paid by an indemnifying party to an indemnified party under this Agreement other than a tax in the nature of a net income or franchise tax (hereafter referred to as a "Tax Assessment"), then the amount so payable shall be grossed up by such amount as will ensure that after payment of the taxation so charged there shall be left a sum equal to the amount that would otherwise be payable under this Agreement. In addition, the indemnified party shall take any action and institute any proceedings, and give any information and assistance, as the indemnifying party may reasonably request to dispute, resist, appeal, compromise, defend, remedy or mitigate the Tax Assessment, in each case on the basis that the indemnifying party shall indemnify the indemnified party for all reasonable costs incurred as a result of a request by the indemnifying party.
(h) An indemnified party shall not admit liability in respect of, or compromise or settle, a Tax Assessment without the prior written consent of the indemnifying party (not to be unreasonably withheld or delayed).
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 5.1 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 meaning of the Securities Act, ; and each officer, director, partner, partner and employee and affiliate of such Selling Holder and such controlling Person, ; against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, to the Exchange Act or other federal or state laws, insofar as extent 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) 5.1.1 Any untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus or final prospectus contained thereinProspectus, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) 5.1.2 The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) 5.1.3 Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned withheld or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense incurred by a Selling Holder (or any Person, if any, who controls such Selling Holder within the meaning of the Securities Act, or any officer, director, partner and employee of such Selling Holder and such controlling Person) to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written the Holder Information or other information furnished to the Company by the indemnified party or on behalf of such Selling Holder expressly for use 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 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 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 soRegistration Statement.
7.2. 5.2 To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, ; each of its directors, each of its officers who shall have signed the registration statement, Registration Statement; each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigationexpenses, incurred by such 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, to the Exchange Act or other federal or state laws, insofar as extent 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 the Holder Information or other information furnished to the Company by such or on behalf of that Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling HolderRegistration Statement.
7.3. 5.3 Promptly after receipt by an indemnified party under this Section 7 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 75, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof 26 with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure of an Indemnified Party to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the 5 unless such failure is prejudicial to such indemnifying party of any liability that it may have party's ability to any indemnified party otherwise than pursuant to this Section 7defend such action. Any fees and expenses 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) 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses expenses, or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding 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 which 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 would 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldwithheld or delayed.
7.4. 5.4 If the indemnification required by this Section 7 5 from the indemnifying party is determined by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 75:
(i) 5.4.1 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 l abilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 5.1 and Section 7.25.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. 27 5.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
Sources: Stock Agreement (Starwood Hotel & Resorts Worldwide Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 7.1 To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderInvestor, each Person, if any, who controls such Selling Holder Investor within the meaning of the Securities Act, and each officer, director, manager, partner, and employee and affiliate of such Selling Holder Investor and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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”):
(ia) 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(iib) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iiic) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Investors.
7.2. 7.2 To the extent permitted by applicable law, each Selling Holder Investor shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling HolderInvestor, any controlling Person of any such other Selling Holder Investor and each officer, director, partner, and employee of such other Selling Holder Investor 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 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 Investor expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder Investor of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling HolderInvestor.
7.3. 7.3 Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 7.4 If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7:
(ia) 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 8 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6 The obligations of the Company and the Selling Investors of Registrable Securities under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Investor Rights Agreement (Accredited Home Lenders Holding Co)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. (a) To the extent permitted by applicable law, the Company shall will indemnify Kraif, his assignee and hold harmless each Selling Holderof their officers, directors, members and partners, and each person controlling it, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, each Persondirector and controlling person of the Company and each officer of the Company who signed the Registration Statement, and each underwriter, if any, and each person who controls any underwriter, against all claims, losses, damages and liabilities (or actions, proceedings or settlements, if such Selling Holder within settlements are effected with the meaning written consent of the Securities ActCompany, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 in respect thereof) arising out of or are based upon on any of the following statements, omissions or violations (collectively a “Violation”):
(i) Any untrue statement (or alleged untrue statement statement) of a material fact contained in such any prospectus, offering circular or other document (including any related registration statement, including any preliminary prospectus notification or final prospectus contained thereinthe like, or any amendments or supplements thereto and any documents incorporated by reference therein) incident to any such registration, qualification or compliance, or any documents filed under state securities or “blue sky” laws in connection therewith;
omission (ii) The omission or alleged omission omission) to state therein a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; or
(iii) Any violation , or alleged any violation by the Company of the Securities Act, Act or the Exchange ActAct or any other applicable securities laws or other federal, any applicable state securities or common law or any rule or regulation promulgated under thereunder applicable to the Securities Act, the Exchange Act or any applicable state securities law arising from or Company and relating to action or inaction required of the Company in connection with the offer any such registration, qualification or compliance, and sale will reimburse Kraif, each of Registrable Securities pursuant to this Agreementits officers, directors, members and partners, and each person controlling Kraif, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, action or proceeding; provided, however, that the indemnification required by this Section 7.1 shall Company will not apply to amounts paid be liable in settlement of any such case to the extent that any such claim, loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 on any untrue statement or omission made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly Kraif or such underwriter for use therein. Such indemnity obligation shall remain in connection with such registration; provided, further, that full force and effect regardless of any investigation made by or on behalf of Kraif and shall survive 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 transfer 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 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 soRegistrable Securities by Kraif.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall Kraif will indemnify and hold harmless the Company, each of its directors, officers and controlling persons, and each underwriter, if any, of its officers who shall have signed the Company’s securities covered by such a registration statement, each Person, if any, person who controls the Company or such underwriter 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual Act 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 lawsthe rules and regulations thereunder, insofar as such against all claims, losses, claimsdamages and liabilities (or actions, damages, liabilities and expenses arise proceedings or settlements in respect thereof) arising out of or are based upon on any Violationuntrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and such directors, officers, members, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, action or proceeding, in each case to the extent (and extent, but only to the extent) , that such Violation occurs untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Company by such Selling Holder expressly Kraif for use in connection with such registrationtherein; provided, however, that the liability of Kraif hereunder shall be limited to an amount equal to the net proceeds received by Kraif from the sale of Registered Securities as contemplated herein giving rise to such liability.
(xc) the Each party entitled to indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed 4 (the gross proceeds from “Indemnified Party”) shall give notice to the applicable offering received by party required to provide indemnification (the “Indemnifying Party”) promptly after such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party and shall deliver to permit the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, Indemnifying Party to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such actionclaim or any litigation resulting therefrom, if prejudicial provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, unless such failure to notify materially adversely affects the Indemnifying Party’s ability to defend such action. No Indemnifying Party, shall relieve such indemnifying party in the defense of any liability such claim or litigation, shall, except with the consent of each Indemnified Party, consent to the indemnified party under this Section 7 but shall not relieve the indemnifying party entry of any liability that it may have to judgment or enter into any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred settlement which does not include as an unconditional term thereof the giving by the indemnified party (including any fees claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and expenses incurred as shall be reasonably required 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldlitigation resulting therefrom.
7.4. (d) If the indemnification required by provided for in this Section 7 from 4 shall for any reason be unenforceable or otherwise unavailable by an Indemnified Party, although otherwise available in accordance with its terms, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the indemnifying party is unavailable to an indemnified party hereunder in respect amount paid or payable by such Indemnified Party as a result of any the losses, claims, damages, liabilities or expenses referred with respect to in this Section 7:
(i) The indemnifying partywhich such Indemnified Party has claimed indemnification, 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnified Party on the one hand and indemnified parties the Indemnifying Party on the other in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault fault, in the case of such indemnifying party and indemnified parties an untrue statement, alleged untrue statement, omission or alleged omission, shall be determined by reference toby, among other things, whether any Violation has been committed bysuch statement, alleged statement, omission or alleged omission relates to information supplied by, such indemnifying party by the Indemnifying Party or indemnified partiesthe Indemnified Party, and the such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement, alleged statement, omission or alleged omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities Company and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto Kraif agree that it would not be just and equitable if contribution pursuant hereto were to this Section 7.4 were be determined by pro rata allocation or by any other method of allocation which does not take into account such equitable considerations. The amount paid or payable by an Indemnified Party as a result of the equitable considerations losses, claims, damages, liabilities or expenses referred to herein shall be deemed to include any legal fees, charges or other expenses reasonably incurred by such Indemnified Party in Section 7.4(i)connection with investigating or defending against any action or claim which is the subject hereof. Notwithstanding In no case, however, shall Kraif be responsible for a portion of the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount contribution obligation in excess of the amount net proceeds received by which Kraif from the total price at which the Registrable Securities sold by sale of securities as contemplated herein giving rise to such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionliability. 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.
(e) Anything to the contrary contained in this Section 4 notwithstanding, Kraif shall not be liable for any indemnification or contribution in excess of the net proceeds received by him from any sale of Registrable Securities which has been registered hereunder.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) The Company shall, to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderHolder of Registrable Securities, its affiliates and their respective partners, directors, officers, members, employees, agents, and each Person, if any, who controls is a Controlling Person of such Selling Holder within the meaning or any of the Securities Actother foregoing indemnified Persons (each of the foregoing, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling a “Covered Person, ”) against any and all losses, claims, actions, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Covered Person may become subject under the Securities Act, the Exchange Act applicable U.S. federal and state or other federal or state non-U.S. securities laws, insofar as such losses, claims, actions, damages, liabilities and or 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 statementor incorporated by reference in any Registration Statement, including any Prospectus, preliminary Prospectus, free writing prospectus or final prospectus contained therein, (as defined in Rule 405 under the Securities Act or any amendments successor rule thereto) or supplements any amendment thereof or supplement thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
document incorporated by reference therein, (ii) The 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 or (iii) any violation or alleged violation by the Company any U.S. federal or state or non-U.S. securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of the applicable Registrable Securities, and the Company shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability; provided, that, in the case of each of clauses (i), (ii), and (iii), the Company shall not be so liable in any such case to the extent that any loss, claim, action, damage, liability or expense arises out of or is based upon any such untrue statement or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and in conformity with, written information prepared and furnished to the Company by or on behalf of such Covered Person expressly for use therein. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and shall, to the fullest extent permitted by law, severally and not jointly, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is a Controlling Person of the Company or any of the other foregoing indemnified Persons (each of the foregoing, a “Company Indemnified Person”) against any losses, claims, actions, damages, liabilities and expenses to which such Company Indemnified Person may become subject under applicable U.S. federal and state or non-U.S. securities laws, insofar as such losses, claims, actions, damages, liabilities or expenses arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein; or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading; or
, but, in the case of each of clauses (iiii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayedii), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense only to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 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 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 is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject as defined in Rule 405 under the Securities Act, the Exchange Act or other federal any successor rule thereto) or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of any amendment thereof or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs supplement thereto in reliance upon upon, and in conformity with with, written information prepared and furnished to the Company by such Selling Holder expressly for use therein, and each such Holder shall reimburse each Company Indemnified Person for any legal or other expenses reasonably incurred by such Company Indemnified Person in connection with such registration; providedinvestigating, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of defending or settling any such loss, claim, damageaction, liability damage or expense if settlement is effected without liability; provided, that the consent of the relevant Selling Holder of Registrable Securities, which consent obligation to indemnify pursuant to this Section 6(b) shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall exceed an amount equal to the amount of any indemnity under this Section 7.2 exceed the gross net proceeds from the applicable offering received by such Selling HolderHolder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. This indemnity shall be in addition to any liability which each such Holder may otherwise have.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party (c) Any Person entitled to indemnification hereunder shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver give prompt written notice to the indemnifying party within a reasonable time following the commencement of any such actionclaim with respect to which it seeks indemnification; provided, if prejudicial that any failure or delay to its ability to defend such action, shall relieve such so notify the indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification hereunder is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any liability such claim or action, with counsel reasonably acceptable to the indemnified party; provided, that it may have to any indemnified party otherwise than pursuant shall continue to this Section 7. Any fees be entitled to participate in the defense of such claim or action, with counsel of its own choice, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (iA) the indemnifying party has agreed in writing to pay such fees fees, costs and expenses or expenses, (iiB) the indemnifying party shall have has 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 which 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 claim or action within a reasonable time after receipt of notice of such claim or action, claim or proceeding on behalf (C) the use of such indemnified party, it being understood, however, that counsel chosen by 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 to represent 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 would present such counsel with a conflict of interest may exist between such indemnified party and any other interest.
(d) If the indemnification provided for in this Section 6(d) is held by a court of such indemnified parties with respect competent jurisdiction to such actionbe unavailable to, claim or proceedingunenforceable by, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense referred to in this Section 7:
(i) The herein, then the applicable indemnifying party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, in connection with the actions statements, omissions or violations which resulted in such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of such the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 by the indemnifying party or by the indemnified partiesparty, whether the violation of the U.S. federal and state or non-U.S. securities law applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of the applicable Registrable Securities was perpetrated by the indemnifying party or the indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement, omission or violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 hereto were determined by pro rata allocation or by any other method of or allocation which that does not take into account the equitable considerations referred to in this Section 7.4(i6(d). Notwithstanding In no event shall the provisions amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 7.4, 6(d) exceed an indemnifying party that is a Selling amount equal to the gross proceeds received by such Holder will not be required to contribute any amount in excess the sale of the amount by which the total price at which the Registrable Securities sold by that gives rise to such indemnifying party and distributed obligation to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissioncontribute. No Person indemnified party guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The provisions of this Section 6(e) shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party or any officer, director or Controlling Person of such indemnified party and shall survive the transfer of any Registrable Securities by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Rent a Center Inc De)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate 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 disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 4(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent (and only to the extent) that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 expenses of investigation, incurred by such 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 any 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; providedPROVIDED, howeverHOWEVER, that (x) the indemnification required by this Section 7.2 4(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 Registrable Securities, (which consent shall not be unreasonably withheld); and, conditioned or delayed, and (y) PROVIDED FURTHER that in no event shall the amount of any indemnity under this Section 7.2 4(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 4 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 74, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually reasonably satisfactory to the parties, acting reasonablyindemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingat its own expense (except as specifically provided below). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 7 4 except, if and to the extent that the indemnifying party is actually prejudiced thereby, but in no event shall not it relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 74. Any fees and expenses 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 sixty (3060) 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, but in such event such amounts shall be immediately refunded). Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 4 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 74:
(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 or expenses (x) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party or parties on the other or (y) if the allocation provided by clause (x) is not permitted by applicable law , in such proportion as to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party or parties on the other, but also the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 4(a) and Section 7.2(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 4(d) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i4(d)(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 4 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Startec Global Communications Corp)
Indemnification; Contribution. If In the event any Registrable Securities are SPSS Common Stock held by a Quantime Shareholder is included in a registration statement under this AgreementArticle II:
7.1. To the extent permitted by applicable law, the Company shall (a) SPSS will indemnify and hold harmless such Quantime Shareholder, any underwriter (as defined in the Act) for such Quantime Shareholder and each Selling Holder, each Personperson, if any, who controls such Selling Holder Quantime Shareholder or underwriter within the meaning of the Securities Act or the 1934 Act, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and ) or expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons they may become subject under the Securities Act, the Exchange 1934 Act or other federal or state lawslaw, insofar as such losses, claims, damages, liabilities and (or actions in respect thereof) or 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 preliminary prospectus or final prospectus contained therein, therein or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
thereto, (ii) The the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
, or (iii) Any any violation or alleged violation by the Company SPSS of the Securities Act, the Exchange 1934 Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange 1934 Act or any applicable state securities law arising from law; and SPSS will pay to each such Quantime Shareholder, underwriter or relating to controlling person, any and all legal or other expenses reasonably incurred by them in connection with the offer and sale of Registrable Securities pursuant to this Agreementinvestigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnification required by indemnity agreement contained in this Section 7.1 subsection 2.5(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability liability, action or expense if such settlement is effected without the consent of the Company (SPSS, which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company SPSS be liable in any such case for any such loss, claim, damage, liability liability, action 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 written information furnished to the Company by the indemnified party such Quantime Shareholder or any controlling person of such Quantime Shareholder expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall (b) Such Quantime Shareholder will indemnify and hold harmless the CompanySPSS, each of its directors, each of its officers who shall have has signed the registration statement, each Personperson, if any, who controls the Company SPSS within the meaning of the Securities Act, any other Selling Holderunderwriter, and any controlling Person person of any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Personunderwriter, against any and all losses, claims, damages, liabilities and expenses (joint and or several), including attorneys’ fees and disbursements and ) or expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons persons may otherwise become subject subject, under the Securities Act, the Exchange 1934 Act or other federal or state lawslaw, insofar as such losses, claims, damages, liabilities and (or actions in respect thereto) or 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 Quantime Shareholder expressly for use in connection with such registration; and such Quantime Shareholder will pay, as incurred, any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this subsection 2.5(b), in connection with investigating or defending any such loss, claim, damage, liability, action or expense; provided, however, that (xthe indemnity agreement contained in this subsection 2.5(b) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability liability, action or expense if such settlement is effected without the consent of the relevant Selling Holder of Registrable Securitiessuch Quantime Shareholder, which consent shall not be unreasonably withheld, conditioned withheld or delayed; provided, and (y) that, in no event shall the amount of any indemnity under this Section 7.2 subsection 2.5(b) exceed the gross proceeds from the applicable offering of the shares of SPSS Common Stock received by such Selling HolderQuantime Shareholder. SPSS shall make the Registration Statement available to the Quantime Shareholders for comment prior to the filing thereof.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 2.5 of notice of the commencement of any action (including any governmental action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7), such indemnified party shall will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.5, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain its own one separate counsel, with 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 a conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld2.5.
7.4. (d) If the indemnification required by provided for in this Section 7 2.5 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7:
(i) The 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault faults of such indemnifying party and indemnified parties party shall be determined by reference to, among other things, whether any Violation 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 committed made by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. 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 includeinclude any fees, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees charges or expenses (including fees, disbursements and other charges of legal counsel) reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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 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 misrepresentationperson.
Appears in 1 contract
Sources: Stock Purchase Agreement (SPSS Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate 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 disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 6 shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 expenses of investigation, incurred by such 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 7.2 6(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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 6(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 76, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingat its own expense except as provided below. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 76. Any fees and expenses 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 sixty (3060) 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, but in such event such amounts shall be refunded). Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 reasonable fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 76:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 6(a) and Section 7.26(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 6(d) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i6(d)(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6(d).
(f) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Indemnification; Contribution. If 4.4.1 Incident to any Registrable Securities are included in a registration statement under referred to in this Agreement:
7.1. To the extent permitted by Section 4, and subject to applicable law, the Company shall will indemnify and hold harmless each Selling HolderHolder who offers or sells any such Registrable Securities in connection with such registration statement (including its directors, officers, employees and agents), and each Person, if any, person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities ActAct or Section 20 of the Exchange Act (a "Controlling Person"), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (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), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon on (a) 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, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or prospectus), (b) any documents filed under state securities or “blue sky” laws in connection therewith;
(ii) The 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 it not misleading; or
(iii) Any violation , or alleged any violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or "blue sky" laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use thereunder in connection with such registration; provided, furtherhowever, -------- ------- that the indemnity agreement contained in this Section 7 shall Company will not apply to any underwriter be liable to the extent that any such loss loss, claim, damage, expense or liability arises from and is based on or arises out of an untrue statement or omission or alleged untrue statement of a material fact, or an omission made in reliance on and in conformity with information furnished in writing to the Company by such Holder or alleged omission Controlling Person expressly for use in such registration statement. With respect 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 untrue statement or omission in the final prospectus has not been sent or given to such person at or prior information furnished in writing to the confirmation of sale to Company by such person if Holder expressly for use in such underwriter was under an obligation to deliver registration statement, such final prospectus and failed to do so.
7.2. To the extent permitted by applicable law, each Selling Holder shall will indemnify and hold harmless the Company, each of Company (including its directors, officers, employees and agents), and each of its officers who shall have signed the registration statement, each Person, if any, person who controls the Company any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, any other Selling Holder, any controlling Person of any such other Selling Holder from and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, insofar as such losses, claims, damages, liabilities and expenses arise out of at common law or are based upon any Violation, in each case otherwise to the same extent (and only to provided in 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; providedimmediately preceding sentence. In no event, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount liability of any indemnity a Holder for indemnification under this Section 7.2 4.4.1 in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the gross proceeds from the applicable offering received by such Selling HolderHolder from its sale of Registrable Securities under such registration statement.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 4.4.2 If the indemnification required provided for in Section 4.4.1 above for any reason is held by this Section 7 from the indemnifying party is 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 in therein, then each indemnifying party under this Section 7:
(i) The indemnifying party4.4, 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 or expenses (a) 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, from the offering of the Registrable Securities or (b) if the allocation provided by clause (a) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (a) above but also the relative fault of the indemnifying party Company, on the one hand, and indemnified parties the Holders, on the other, in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company and indemnified parties the Holders shall be determined by reference to, among other things, whether any Violation has been committed by, 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 party by the Company or indemnified parties, the Holders and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto Holders agree that it would not be just and equitable if contribution pursuant to this Section 7.4 4.4.2 were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4In no event, an indemnifying party that is however, shall a Selling Holder will not be required to contribute any amount under this Section 4.4.2 in excess of the amount proceeds received by which the total price at which the such Holder from its sale of Registrable Securities sold by under such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party 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.
4.4.3 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 4.4 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, payable as the same are incurred. The indemnification and contribution provided for in this Section 4.4 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
4.4.4 Any person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification, but the failure to do so shall not relieve the indemnifying party from any liability, except to the extent it is actually prejudiced by the failure or delay in giving such notice, and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld).
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.18.1. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and reasonable expenses (joint or several), including reasonable attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 reasonable 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 8.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed)Company, nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, provided further, that the indemnity agreement contained in this Section 7 8 shall not apply to any underwriter 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, 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 the Selling Holders against claims asserted by underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.28.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 expenses of investigation, incurred by such 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 about such Selling Holder furnished by such Selling Holder to the Company expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 8.2 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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 8.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.38.3. Promptly after receipt by an indemnified party under this Section 7 8 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 78, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 8 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 78. Any fees and expenses 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) 30 days of written notice thereof to the indemnifying party; provided, however, that such notice is accompanied by an appropriate undertaking of the indemnified party (regardless of whether to reimburse the indemnifying party to the extent it is ultimately determined that an indemnified such party is not entitled to indemnification hereunder)indemnification. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.48.4. If the indemnification required by this Section 7 8 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 78:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 8.1 and Section 7.28.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 8.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i8.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
8.5. If indemnification is available under this Section 8, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 8 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 8.4.
8.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 8 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement or otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Metro One Telecommunications Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. (a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each Personperson, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Personperson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons 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 untrue statement or alleged untrue statement of a material fact contained in such registration statementRegistration Statement, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 4(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent (and only to the extent) that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Personperson, if any, who controls the Company 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, 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 expenses of investigation, incurred by such 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 any 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 7.2 4(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 Registrable Securities, (which consent shall not be unreasonably withheld); and, conditioned or delayed, and (y) provided further that in no event shall the amount of any indemnity under this Section 7.2 4(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 4 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 74, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually reasonably satisfactory to the parties, acting reasonablyindemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingat its own expense (except as specifically provided below). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 7 4 except, if and to the extent that the indemnifying party is actually prejudiced thereby, but in no event shall not it relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 74. Any fees and expenses 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 sixty (3060) 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, but in such event such amounts shall be immediately refunded). Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 4 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 74:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation; provided however, that in no event shall the obligation of any indemnifying party to contribute under this clause (i) exceed the amount that such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for in Section 4(a) had been available under the circumstances. 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 7.1 4(a) and Section 7.2(b), any legal or other fees or expenses reasonably incurred by such 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 7.4 4(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account the equitable considerations referred to in Section 7.4(i4(d)(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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 person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and the Holder under this Section 4 shall survive the completion of any offering of Common Stock pursuant to a registration statement.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) The Company shall, to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderHolder of Registrable Securities, its affiliates and their respective partners, directors, officers, members, employees, agents, and each Person, if any, who controls is a Controlling Person of such Selling Holder within the meaning or any of the Securities Actother foregoing indemnified Persons (each of the foregoing, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling a “Covered Person, ”) against any and all losses, claims, actions, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Covered Person may become subject under the Securities Act, the Exchange Act applicable U.S. federal and state or other federal or state non-U.S. securities laws, insofar as such losses, claims, actions, damages, liabilities and or 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 statementor incorporated by reference in any Registration Statement, including any Prospectus, preliminary Prospectus, free writing prospectus or final prospectus contained therein, (as defined in Rule 405 under the Securities Act or any amendments successor rule thereto) or supplements any amendment thereof or supplement thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
document incorporated by reference therein, (ii) The 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 or (iii) any violation or alleged violation by the Company any U.S. federal or state or non-U.S. securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of the applicable Registrable Securities, and the Company shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability; provided, that, in the case of each of clauses (i), (ii), and (iii), the Company shall not be so liable in any such case to the extent that any loss, claim, action, damage, liability or expense arises out of or is based upon any such untrue statement or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and in conformity with, written information prepared and furnished to the Company by or on behalf of such Covered Person expressly for use therein. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and shall, to the fullest extent permitted by law, severally and not jointly, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is a Controlling Person of the Company or any of the other foregoing indemnified Persons (each of the foregoing, a “Company Indemnified Person”) against any losses, claims, actions, damages, liabilities and expenses to which such Company Indemnified Person may become subject under applicable U.S. federal and state or non-U.S. securities laws, insofar as such losses, claims, actions, damages, liabilities or expenses arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein; or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading; or
, but, in the case of each of clauses (iiii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayedii), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense only to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 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 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 is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject as defined in Rule 405 under the Securities Act, the Exchange Act or other federal any successor rule thereto) or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of any amendment thereof or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs supplement thereto in reliance upon upon, and in conformity with with, written information prepared and furnished to the Company by such Selling Holder expressly for use therein, and each such Holder shall reimburse each Company Indemnified Person for any legal or other expenses reasonably incurred by such Company Indemnified Person in connection with such registration; providedinvestigating, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of defending or settling any such loss, claim, damageaction, liability damage or expense if settlement is effected without liability; provided, that the consent of the relevant Selling Holder of Registrable Securities, which consent obligation to indemnify pursuant to this Section 6(b) shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall exceed an amount equal to the amount of any indemnity under this Section 7.2 exceed the gross net proceeds from the applicable offering received by such Selling HolderHolder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. This indemnity shall be in addition to any liability which each such Holder may otherwise have.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party (c) Any Person entitled to indemnification hereunder shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver give prompt written notice to the indemnifying party within a reasonable time following the commencement of any such actionclaim with respect to which it seeks indemnification; provided, if prejudicial that any failure or delay to its ability to defend such action, shall relieve such so notify the indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification hereunder is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any liability such claim or action, with counsel reasonably acceptable to the indemnified party; provided, that it may have to any indemnified party otherwise than pursuant shall continue to this Section 7. Any fees be entitled to participate in the defense of such claim or action, with counsel of its own choice, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (iA) the indemnifying party has agreed in writing to pay such fees fees, costs and expenses or expenses, (iiB) the indemnifying party shall have has 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 which 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 claim or action within a reasonable time after receipt of notice of such claim or action, claim or proceeding on behalf (C) the use of such indemnified party, it being understood, however, that counsel chosen by 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 to represent 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 would present such counsel with a conflict of interest may exist between such indemnified party and any other interest.
(d) If the indemnification provided for in this Section 6 is held by a court of such indemnified parties with respect competent jurisdiction to such actionbe unavailable to, claim or proceedingunenforceable by, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense referred to in this Section 7:
(i) The herein, then the applicable indemnifying party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, in connection with the actions statements, omissions or violations which resulted in such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of such the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 by the indemnifying party or by the indemnified partiesparty, whether the violation of the U.S. federal and state or non-U.S. securities law applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of the applicable Registrable Securities was perpetrated by the indemnifying party or the indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement, omission or violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 hereto were determined by pro rata allocation or by any other method of or allocation which that does not take into account the equitable considerations referred to in this Section 7.4(i6(d). Notwithstanding In no event shall the provisions amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 7.4, 6(d) exceed an indemnifying party that is a Selling amount equal to the net proceeds received by such Holder will not be required to contribute any amount in excess the sale of the amount by which the total price at which the Registrable Securities sold by that gives rise to such indemnifying party and distributed obligation to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissioncontribute. No Person indemnified party guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The provisions of this Section 6 shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party or any officer, director or Controlling Person of such indemnified party and shall survive the transfer of any Registrable Securities by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Upbound Group, Inc.)
Indemnification; Contribution. If 6.01. With respect to any registration, qualification or compliance effected or to be effected pursuant to this Agreement, AROC shall indemnify each holder of Registrable Securities whose 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 Holderor are to be included therein, each Personsuch holder's directors, if anyofficers, employees, stockholders, Affiliates and agents, each underwriter (as defined in the Securities Act) of the securities sold by such holder and each Person who controls such Selling Holder (within the meaning of the Securities Act) any such holder or underwriter, from and each officeragainst all claims, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, damages and liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 actions in respect thereof) arising out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):on:
(i) Any any untrue statement (or alleged untrue statement statement) of a material fact contained in such any prospectus, offering circular or other document (including without limitation any related registration statement, including any preliminary prospectus notification or final prospectus contained thereinthe like), or any amendments amendment thereof or supplements thereto supplement thereto, incident to any such registration, qualification or any documents filed under state securities or “blue sky” laws in connection therewithcompliance;
(ii) The any omission (or alleged omission omission) to state therein a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; or
(iii) Any violation or alleged any violation by the Company AROC of the 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 rule or regulation promulgated thereunder applicable to AROC, or of any blue sky or other state securities law arising from laws or relating any rule or regulation promulgated thereunder applicable to or AROC, and will reimburse each such Person entitled to indemnity under this Section 6.01 for all legal and other expenses reasonably incurred, as the same are incurred, in connection with the offer and sale of Registrable Securities pursuant to this Agreementinvestigating or defending any such claim, loss, damage, liability or action; 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 consent of the Company (which consent foregoing indemnity and reimbursement obligation shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense applicable to the extent that it any such claim, loss, damage or liability arises out of or is based upon a Violation which occurs on any untrue statement (or alleged untrue statement) or omission (or alleged omission) or violation made in reliance upon and in conformity with written information furnished to the Company AROC by the indemnified party expressly such holder specifically for use in connection with such registrationprospectus, offering circular, other document, amendment or supplement; provided, further, and provided further that the foregoing indemnity agreement contained in this Section 7 and reimbursement obligation shall not apply be applicable with respect to any underwriter preliminary prospectus to the extent that any such loss is based on loss, claim, damage, liability 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 preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy expense of the final prospectus has indemnitee results from the fact that a holder of Registrable Securities sold Registrable Securities to a person to whom there was not been sent or given to such person given, at or prior to the written confirmation of sale the sale, a copy of the prospectus (excluding documents incorporated by reference) or of the prospectus as then amended or supplemented (excluding documents incorporated by reference) if AROC has previously furnished copies thereof to the holder of Registrable Securities in compliance with Section 5 of this Agreement and the loss, claim, damage, liability or expense of the indemnitee results from an untrue statement or omission of a material fact contained in such person if such underwriter preliminary prospectus which was under an obligation to deliver such final corrected in the prospectus and failed to do so(or the prospectus as amended or supplemented).
7.26.02. To the extent permitted by applicable lawWith respect to any registration, qualification or compliance effected or to be effected pursuant to this Agreement, each Selling Holder holder of Registrable Securities which are included or are to be included in such registration, qualification or compliance shall indemnify and hold harmless the CompanyAROC, each of its directors, each of its officers who shall have signed the registration statementofficers, employees, stockholders, Affiliates and agents, each Personunderwriter (as defined in the Securities Act) of the securities of such holder, if any, each Person who controls the Company (within the meaning of the Securities Act, any other Selling Holder, any controlling Person of ) AROC or any such other Selling Holder underwriter from and each officeragainst all claims, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claimsdamages and liabilities (or actions in respect thereof) arising out of or based on:
(i) any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, damagesoffering circular or other document (including without limitation any related registration statement, liabilities and expenses (joint and severalnotification or the like), including attorneys’ fees and disbursements and expenses of investigationor any amendment thereof or supplement thereto, incurred incident to any such registration, qualification or compliance;
(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;
(iii) any violation by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any holder of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or any rule or regulation promulgated thereunder applicable to such holder, or of any blue sky or other federal state securities law or state lawsany rule or regulation promulgated thereunder applicable to such holder, insofar and will reimburse each such Person entitled to indemnity under this Section 6.02 for any legal and other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, expense, liability or action; or
(iv) with respect to any preliminary prospectus, the fact that any holder of Registrable Securities sold Registrable Securities to a person to whom there was not sent or given, at or prior to the written confirmation of the sale, a copy of the prospectus (excluding documents incorporated by reference) or of the prospectus as such lossesthen amended or supplemented (excluding documents incorporated by reference) if (a) AROC has previously furnished copies thereof to the holder of Registrable Securities in compliance with Section 5 of this Agreement and (b) the loss, claimsclaim, damagesdamage, liabilities and expenses arise out liability or expense of the indemnitee results from an untrue statement or are based upon any Violation, omission of a material fact contained in the preliminary prospectus which was corrected in the prospectus (or the prospectus as amended or supplemented); but in each case of the preceding subsections (i), (ii), (iii) and (iv), only to the extent (and only to the extent) that such Violation occurs untrue statement (or alleged untrue statement) or omission (or alleged omission) or violation is made in such prospectus, offering circular, other document, amendment or supplement in reliance upon and in conformity with written information furnished to AROC by such Selling Holder expressly holder specifically for use in connection with such registrationprospectus, offering circular, other document, amendment or supplement.
6.03. Each Person entitled to indemnification under this Section 6 (an "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after the Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, however, that:
(i) counsel for the Indemnifying Party who shall conduct the defense of any such claim or any litigation shall be approved by the Indemnified Party (which approval shall not be unreasonably withheld or delayed);
(ii) the Indemnified Party may participate in such defense at the Indemnified Party's expense; provided, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability Indemnified Party or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 Indemnified Parties shall have the right to employ a single law firm and a single local counsel law firm to represent it or them if, in the reasonable judgment of the Indemnified Party or Indemnified Parties, it is advisable for it or them to be represented by separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses by reason of such counsel shall be 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 having legal defenses available to it which are different from or in addition to those available to the indemnifying party Indemnifying Party, and in 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 event the reasonable fees and expenses of more than one separate such law firm and one such local law firm shall be paid by the Indemnifying Party; and
(iii) failure of attorneys (together with appropriate local counsel) at any time for all such indemnified partiesIndemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 6. No Indemnifying Party, unless in the reasonable judgment defense of any 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 proceedinglitigation, in which event shall, except with the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying partyIndemnified Party to which such claim or litigation relates, which consent to entry of any judgment or enter into any settlement unless such settlement relieves the Indemnified Party of any and all liability. Each Indemnified Party shall not furnish such information regarding itself for the claim in question as an Indemnifying Party may reasonably request in writing and as shall be unreasonably withheldreasonably required in connection with defense of such claim in litigation resulting therefrom.
7.46.04. If the indemnification required by this indemnity and reimbursement obligation provided for in each of Section 7 from the indemnifying party 6.01 and Section 6.02 is unavailable or insufficient to hold harmless an indemnified party hereunder Indemnified Party in respect of any claims, losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) referred to in this Section 7:
(i) The indemnifying partytherein, in lieu of indemnifying such indemnified party, then the Indemnifying Party shall contribute to the amount paid or payable by such indemnified party the Indemnified Party as a result of such claims, losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party, on the one hand, and indemnified parties the Indemnified Party, on the other hand, in connection with the actions statements or omissions which resulted in such claims, losses, claims, damages, liabilities damages or expensesliabilities, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, 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 party by the Indemnifying Party or indemnified parties, the Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The omission.the parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 7.4 6.04 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 in Section 7.4(i). Notwithstanding the provisions first sentence of this Section 7.4, 6.04. The amount paid by an indemnifying party that is Indemnified Party as a Selling Holder will not be required to contribute any amount in excess result of the amount by which losses, claims, damages or liabilities referred to in the total price at which the Registrable Securities sold first sentence of this Section 6.04 shall be deemed to include any legal and other expenses reasonably incurred by such indemnifying party and distributed to Indemnified Party in connection with investigating or defending any claim, loss, damage, liability or action which is the public were offered to the public exceeds the amount subject of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionthis Section 6.04. No Person Indemnified Party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who the Indemnifying Party if the Indemnifying Party was not guilty of such fraudulent misrepresentation. The provisions of this Section 6 shall be in addition to any other rights to indemnification or contribution which an indemnified party may have pursuant to law, equity, contract or otherwise and shall remain in full force and effect regardless of any investigation made by or on behalf of an Indemnified Party and shall survive the transfer of the shares of Common Stock or other stock or securities which may be issued upon exercise of the Warrants.
Appears in 1 contract
Sources: Registration Rights Agreement (American Rivers Oil Co /De/)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the (a) The Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate 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 disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 5(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent (and only to the extent) that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the any indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 5 shall not apply to any underwriter 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, 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.
7.2. To The Company shall also indemnify underwriters participating in the extent permitted by applicable law, distribution and each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, person who controls the Company any such underwriter (within the meaning of Section 15 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual Act or threatened action, suit, proceeding or investigation, or to which any Section 20 of the foregoing Persons may otherwise become subject under the Securities Exchange 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 same extent (and only as provided above with respect 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 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 consent of the relevant Selling Holder Holders. The Company may also require in any underwriting agreement that it signs, reasonable indemnification and contribution agreements in favor of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds Company from the applicable offering received by such underwriters and the Selling HolderHolders.
7.3. (b) Promptly after receipt by an indemnified party under this Section 7 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 75, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 proceedingat its own expense except as provided below. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and to the extent prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 75. Any fees and expenses 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 sixty (3060) 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, but in such event such amounts shall be refunded). Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 reasonable fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (c) If the indemnification required by this Section 7 5 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 75:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties party shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. Notwithstanding the provision of this subsection (i), each indemnified party shall not be required to contribute any amount in excess of the net proceeds such indemnified party received from the sale of Registrable Securities. 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 7.1 and Section 7.25(a), any legal or other fees or expenses reasonably incurred by such 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 7.4 5(c) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i5(c)(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(d) If indemnification is available under this Section 5, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 5 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 5(c).
(e) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 5 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities ----------------------------- are included in a registration statement under this Agreement:
7.1. 7.1 To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling the Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling the Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 collectively, a “"Violation”"):
(ia) 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(iib) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iiic) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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 and selling or placement agents participating in the distribution, their officers, directors, agents and employees and each person who controls such 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 Holder, provided, however that no such -------- ------- underwriter or agent shall be entitled to indemnification under this Agreement if such person shall have entered into a separate underwriting agency or indemnification agreement with the Company.
7.2. 7.2 To the extent permitted by applicable law, each Selling the Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 the Company 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 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 the Holder expressly for use in connection with such registration; provided, however, that (x) the -------- ------- indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable SecuritiesHolder, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. 7.3 Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that subject to the rights of an indemnified party shall have the right to retain its own counsel, with 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 proceedingas hereinafter provided. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and -10- expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) owed by the indemnifying party hereunder shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether subject to refund if 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 reasonable fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. 7.4 If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7:
(ia) 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 7.l and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i7.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6 The obligations of the Company and the Holder under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Timberland Growth Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:: 9.
7.11. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewith;
thereto; (ii) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
or (iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 9.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 9 shall not apply to any underwriter 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, 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.
7.2. To The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the extent permitted by applicable lawdistribution, each Selling Holder shall indemnify and hold harmless the Companytheir officers, each of its directors, agents and employees and each of its officers who shall have signed the registration statement, each Person, if any, person who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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 persons (within the meaning of Section 11(f) 15 of the Securities Act or Section 20 of the Exchange Act) shall be entitled to contribution from any Person who was not guilty the same extent as provided above with respect to the indemnification of such fraudulent misrepresentationthe Selling Holders.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are ----------------------------- included in a registration statement under this Agreement:
7.1. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. 7.2 To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.-------- -------
Appears in 1 contract
Indemnification; Contribution. 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 the Selling Holder, each Person, if any, who controls such the Selling Holder within the meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such the Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or and several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewithincorporated by reference therein (collectively, the "Registration Statement");
(ii) The omission or alleged omission to state therein in the Registration Statement a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (Company, which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each the Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, and each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 the Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable SecuritiesHolder, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such the Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, in and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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) separate from its own 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7:
(ia) 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i7.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(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 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Selling Holder under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Aerial Communications Inc)
Indemnification; Contribution. 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 meaning of the Securities Act, and each officer, director, partner, employee member, employee, agent, representative and affiliate attorney 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 disbursements and reasonable expenses of investigation, incurred by such party Person pursuant to any actual or threatened action, suit, proceeding or 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”"):
(ia) 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(iib) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iiic) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or withheld nor delayed), nor shall the Company be liable to an indemnified party in any such case for any such loss, claim, damage, liability or expense to the extent that it arises solely out of or is solely based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the such indemnified party expressly for use 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 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 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. To the extent permitted by applicable law, each Selling Holder Holder, severally and not jointly, shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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, member, employee, agent, representative and employee attorney 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 Person 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldwithheld or delayed.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7:
(ia) 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i7.4(a). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f11 (f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(c) In no event shall the total of amounts paid pursuant to this Section 7.4 by any Selling Holder exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.5. If indemnification is available under this Section 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
7.7. Nothing contained in this Section 7 shall be deemed to give the Company the right to refuse to file any registration statement pursuant to Sections 2 or 3 or otherwise take any action required thereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Firearms Training Systems Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. 5.1 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 meaning of the Securities Act, ; and each officer, director, partner, partner and employee and affiliate of such Selling Holder and such controlling Person, ; against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, to the Exchange Act or other federal or state laws, insofar as extent 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) 5.1.1 Any untrue statement or alleged untrue statement of a material fact contained in such registration statementthe Registration Statement, including any preliminary prospectus or final prospectus contained thereinProspectus, or any amendments or supplements thereto or any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) 5.1.2 The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; provided, however, that the indemnification required by this Section 7.1 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned withheld or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense incurred by a Selling Holder (or any Person, if any, who controls such Selling Holder within the meaning of the Securities Act, or any officer, director, partner and employee of such Selling Holder and such controlling Person) to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written the Holder Information or other information furnished to the Company by the indemnified party or on behalf of such Selling Holder expressly for use 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 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 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 soRegistration Statement.
7.2. 5.2 To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, ; each of its directors, each of its officers who shall have signed the registration statement, Registration Statement; each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigationexpenses, incurred by such 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, to the Exchange Act or other federal or state laws, insofar as extent 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 the Holder Information or other information furnished to the Company by such or on behalf of that Selling Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling HolderRegistration Statement.
7.3. 5.3 Promptly after receipt by an indemnified party under this Section 7 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 75, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof 26 with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure of an Indemnified Party to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the 5 unless such failure is prejudicial to such indemnifying party of any liability that it may have party's ability to any indemnified party otherwise than pursuant to this Section 7defend such action. Any fees and expenses 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) 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses expenses, or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding 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 which 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 would 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheldwithheld or delayed.
7.4. 5.4 If the indemnification required by this Section 7 5 from the indemnifying party is determined by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 75:
(i) 5.4.1 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 5.1 and Section 7.25.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. 27 5.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
Sources: Stock Agreement (Starwood Hotel & Resorts Worldwide Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
7.1. To (a) The Company shall, to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderHolder of Registrable Securities, its Affiliates and their respective direct and indirect general and limited partners, advisory board members, directors, officers, trustees, managers, members, shareholders employees, agents and each Person, if any, Person who controls is a Controlling Person of such Selling Holder within the meaning or any of the Securities Actother foregoing indemnified Persons (each of the foregoing, and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling an “Investor Indemnified Person, ”) against any and all losses, claims, actions, damages, liabilities and expenses (expenses, joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Investor Indemnified Person may become subject under the Securities Act, the Exchange Act Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or 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 statementor incorporated by reference in any Registration Statement, including any Prospectus, preliminary Prospectus, free writing prospectus or final prospectus contained therein, (as defined in Rule 405 under the Securities Act or any amendments successor rule thereto) or supplements any amendment thereof or supplement thereto or any documents filed under state securities or “blue sky” laws in connection therewith;
document incorporated by reference therein, (ii) The any omission or alleged omission to state therein of a material fact required to be stated therein, therein or necessary to make the statements therein not misleading; or
misleading or (iii) Any any violation or alleged violation by the Company of the 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 other similar federal or state securities law arising from or laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities, and the offer and sale of Registrable Securities pursuant to this Agreement; providedCompany shall reimburse each Investor Indemnified Person for any legal or other expenses reasonably incurred by such Investor Indemnified Person in connection with investigating, however, that the indemnification required by this Section 7.1 shall not apply to amounts paid in settlement of defending or settling any such loss, claim, damageaction, liability damage or expense if such settlement is effected without liability; provided that, in the consent case of each of clauses (i), (ii) and (iii), the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be so liable in any such case for to the extent that any such loss, claim, action, 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 written information furnished to the Company by the indemnified party expressly for use 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 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 preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon, and a copy of the final prospectus has not been sent or given to such person at or prior in conformity with, written information prepared and furnished to the confirmation Company by or on behalf of sale such Investor Indemnified Person expressly for use therein. This indemnity shall be in addition to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do soany liability the Company may otherwise have.
7.2. To (b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to the Company such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and shall, to the fullest extent permitted by applicable law, each Selling Holder shall severally and not jointly, indemnify and hold harmless the Company, its Affiliates and their respective directors and officers, employees, agents and any Person who is a Controlling Person of the Company or any of the other foregoing indemnified Persons (each of its directorsthe foregoing, each of its officers who shall have signed the registration statement, each an “Company Indemnified Person, if any, who controls the Company 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, actions, damages, liabilities and expenses (expenses, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Company Indemnified Person may otherwise become subject under the Securities Act, the Exchange Act Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or other federal or state lawsotherwise, insofar as such losses, claims, actions, damages, liabilities and or expenses arise out of or are based upon (i) any Violationuntrue or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein, or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but, in the case of each case of clauses (i) and (ii), only to the extent (and only to the extent) that such Violation occurs untrue statement or alleged untrue statement, or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto in reliance upon upon, and in conformity with with, written information prepared and furnished to the Company by such Selling Holder expressly for use therein, and each such Holder shall reimburse each Company Indemnified Person for any legal or other expenses reasonably incurred by such Company Indemnified Person in connection with such registration; providedinvestigating, however, that (x) the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement of defending or settling any such loss, claim, damageaction, liability damage or expense if settlement is effected without liability; provided, that the consent of the relevant Selling Holder of Registrable Securities, which consent obligation to indemnify pursuant to this Section 11(b) shall not be unreasonably withheld, conditioned or delayed, and exceed an amount equal to the net proceeds (yafter deducting Selling Expenses) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering actually received by such Selling HolderHolder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. This indemnity shall be in addition to any liability which each such Holder may otherwise have.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party (c) Any Person entitled to indemnification hereunder shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver give prompt written notice to the indemnifying party within a reasonable time following the commencement of any such actionclaim with respect to which it seeks indemnification; provided, if prejudicial that any failure or delay to its ability to defend such action, shall relieve such so notify the indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification hereunder is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the indemnifying party’s expense, the defense of any liability such claim or action, with counsel reasonably acceptable to the indemnified party; provided, that it may have to any indemnified party otherwise than pursuant shall continue to this Section 7. Any fees be entitled to participate in the defense of such claim or action, with counsel of its own choice, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (iA) the indemnifying party has agreed in writing to pay such fees fees, costs and expenses or expenses, (iiB) the indemnifying party shall have has failed to promptly assume the defense of such claim or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or proceeding action, the indemnifying party fails to employ counsel reasonably acceptable to the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest or (iiiE) 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 has reasonably concluded that there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which are different from or in addition additional to those available to the indemnifying party and that party. Subject to the assertion of such defenses would create a conflict of interest such that counsel employed by proviso in the foregoing sentence, no 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 notshall, in connection with any one such action, claim or proceeding action or separate but substantially similar or related actions, claims or proceedings actions in the same jurisdiction arising out of the same general allegations circumstances or circumstancesallegations, be liable for the reasonable fees fees, costs and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all such indemnified parties, unless in . The indemnifying party shall not have the reasonable judgment of such right to settle a claim or action for which any indemnified party a conflict is entitled to indemnification hereunder without the consent of interest may exist between such the indemnified party 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 not consent to pay the fees entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and expenses includes as an unconditional term thereof the giving by the claimant or plaintiff therein to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, of a full and final release from all liability in respect of such additional counsel claim or counsels)action. No The indemnifying party shall not be liable hereunder for any amount paid or payable or incurred pursuant to or in connection with any judgment entered or settlement effected with the consent of an indemnified party for any settlement of any action, proceeding or claim without the written consent of unless the indemnifying party, which party has also consented to such judgment or settlement (such consent shall not to be unreasonably withheld, conditioned or delayed).
7.4. (d) If the indemnification required by provided for in this Section 7 from the indemnifying party 11 is held by a court of competent jurisdiction to be unavailable to to, or unenforceable by, an indemnified party hereunder in respect of any lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense referred to in this Section 7:
(i) The herein, then the applicable indemnifying party, in lieu of indemnifying such indemnified partyparty hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, in connection with the actions statements, omissions or violations which resulted in such lossesloss, claimsclaim, damagesaction, liabilities damage, liability or expenses, expense as well as any other relevant equitable considerations. The relative fault of such the indemnifying party party, on the one hand, and of the indemnified parties party, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 by the indemnifying party or by the indemnified partiesparty, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities was perpetrated by the indemnifying party or the indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement, omission or violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 hereto were determined by pro rata allocation or by any other method of or allocation which that does not take into account the equitable considerations referred to in this Section 7.4(i11(d). Notwithstanding In no event shall the provisions amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 7.4, 11(d) exceed an indemnifying party that is a amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder will not be required to contribute any amount in excess the sale of the amount by which the total price at which the Registrable Securities sold by that gives rise to such indemnifying party and distributed obligation to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissioncontribute. No Person indemnified party guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The provisions of this Section 11 shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party or any officer, director or Controlling Person of such indemnified party and shall survive the Transfer of any Registrable Securities by any Holder.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:: 7.
7.11. 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 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 any documents filed under state securities or “blue sky” laws in connection therewith;
thereto; (ii) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
or (iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 (i) occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 registration or (ii) arises out of from an untrue statement or alleged untrue statement omission of a material fact, or an omission or alleged omission to state a material fact, fact contained in or omitted from any a preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, omission was corrected in a subsequent preliminary prospectus 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling Holder, any controlling Person copies of any such other subsequent preliminary prospectus or final prospectus have been made available by the Company to the Underwriters (or the Selling Holder Holders in the case of a non-underwritten offering). The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each officer, director, partner, and employee of person who controls 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 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 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 consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to 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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such 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 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages 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 persons (within the meaning of Section 11(f) 15 of the Securities Act or Section 20 of the Exchange Act) shall be entitled to contribution from any Person who was not guilty the same extent as provided above with respect to the indemnification of such fraudulent misrepresentationthe Selling Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Aegis Consumer Funding Group Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this AgreementSection 9:
7.1. (a) 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 meaning of the Securities Act, and each officer, director, partner, and employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or 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 pursuant to a final non-appealable order (collectively a “"Violation”"):
(i) Any 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(ii) The the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) Any any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; provided, however, that the indemnification required by this Section 7.1 9.7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises is determined by a court of competent jurisdiction by a final non-appealable order to have solely arisen out of or is be based upon a Violation which occurs occurred in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 9.7(a) shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Selling Holders.
7.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statementand employees, each Person, if any, who controls the Company 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 attorneys’ ' fees and disbursements and expenses of investigation, incurred by such 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 are determined by a court of competent jurisdiction by a final non-appealable order to have solely arisen out of or are be based upon any Violation, in each case to the extent (and only to the extent) a Violation that such Violation occurs occurred 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 7.2 9.7(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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 9.7(b) exceed the gross net proceeds from the applicable offering received by such Selling Holder.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 9.7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 79.7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 9.7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 79.7. Any reasonable fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 9.7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 79.7:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 7.1 9.7(a) and Section 7.29.7(b), any reasonable legal or other fees or expenses reasonably incurred by such 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 7.4 9.7(d) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission9.7(d)(i) above. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 9.7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 9.7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 9.7(d) above.
(f) The indemnification required by this Section 9.7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred. In the event that it shall be subsequently determined that the recipient of any such periodic payment shall not be entitled to indemnification hereunder, such recipient promptly shall repay such payments, together with interest thereon at the Agreed Rate from the date of original receipt to the date of repayment.
(g) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 9.7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Section 9, and otherwise.
Appears in 1 contract
Sources: Warrant Agreement (Norand Corp /De/)
Indemnification; Contribution. 5.1 If any Registrable Securities Common Shares are included in a registration statement under this AgreementExhibit A:
7.1. (a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderStockholder Party, each Personsuch party’s heirs (if applicable), if any, who controls such Selling Holder within the meaning of the Securities Act, successors and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Personpermitted assigns, against any and all losses, claims, damages, liabilities and reasonable expenses (joint or several), including reasonable attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons 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 reasonable 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 any documents filed under state securities or “blue sky” laws in connection therewiththereto;
(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; or
(iii) Any violation or alleged violation by the Company of the 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 arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreementlaw; ACTIVE 231358484 provided, however, that the indemnification required by this Section 7.1 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed)Company, nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 5 shall not apply to any underwriter 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, 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 distribution, their officers, directors, agents and employees and each person who controls such 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 Stockholder Parties.
7.2. (b) To the extent permitted by applicable law, each Selling Holder Stockholder Party shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Personperson, if any, who controls the Company 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 reasonable expenses (joint and several), including reasonable attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons 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 reasonable expenses arise out of or are based upon any ViolationViolation by such Stockholder Party, 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 Stockholder Party or such party’s counsel expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 5.1(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 Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling HolderStockholder Party.
7.3. (c) Promptly after receipt by an indemnified party under this Section 7 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 75, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 ACTIVE 231358484 represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 5 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 75. Any fees and expenses 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; provided, that such notice is accompanied by an appropriate undertaking to reimburse the indemnifying party (regardless of whether if 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. (d) If the indemnification required by this Section 7 5 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 75:
(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 or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any Exhibit A 8 ACTIVE 231358484 other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. 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 this Section 7.1 and Section 7.25, any legal or other fees or expenses reasonably incurred by such 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 7.4 5 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 7.4(i). Notwithstanding the provisions of this Section 7.4, an indemnifying party that is a Selling Holder will not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission5. 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.
(e) If indemnification is available under this Section 5, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 5 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in this Section 5.
(f) The obligations of the Company and the Stockholder Parties under this Section 5 shall survive the completion of any offering of Common Shares pursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Agreement Regarding Common Stock (Cal-Maine Foods Inc)
Indemnification; Contribution. If (a) Incident to any Registrable Securities are included in a registration statement under referred to in this Agreement:
7.1. To the extent permitted by Article III, and subject to applicable law, the Company shall will indemnify and hold harmless each underwriter, each Holder of Registrable Securities 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 and containing in like fashion until individuals are reached), and directors, officers, employees and agents of any of them, a "Selling Holder"), and each Person, if any, person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person"), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (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), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
on (i) Any any untrue statement or alleged untrue statement of a material fact contained in such registration statement, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or any documents filed under state securities or “blue sky” laws in connection therewith;
prospectus), (ii) The 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 it not misleading; or
, or (iii) Any violation or alleged any violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or "blue sky" laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from or relating to or in connection with the offer and sale of Registrable Securities pursuant to this Agreement; 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 consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 written information furnished to the Company by the indemnified party expressly for use 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 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 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.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company 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 attorneys’ fees and disbursements and expenses of investigation, incurred by such 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 thereunder in connection with such registration; provided, however, that (x) the indemnification required by this Section 7.2 shall Company will not apply be liable to amounts paid in settlement of any the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned omission or delayed, and (y) in no event shall the amount of any indemnity under this Section 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation alleged untrue statement or threat thereof omission made in reliance on and in conformity with information furnished in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses to be paid Company 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 partyunderwriter, it being understood, however, that the indemnifying party shall not, Selling Holder or Controlling Person expressly for use 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 registration statement. Solely with respect to such action, claim untrue statement or proceeding, omission or alleged untrue statement or omission in which event the indemnifying party shall be obligated information furnished in writing to pay the fees and expenses Company by or on behalf of such additional counsel or counselsSelling 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). No indemnifying party shall be liable to an indemnified party for any settlement , each other Holder of Registrable Securities (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any actionof them) so registered, proceeding or claim without and each person who controls any of them within the written consent meaning of Section 15 of the indemnifying partySecurities Act or Section 20 of the Exchange Act, which consent shall not be unreasonably withheld.from and against any and all losses, claims, damages, expenses and
7.4. (b) If the indemnification required provided for in Section 3.5(a) above for any reason is held (by this Section 7 from the indemnifying party is entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right to appeal) to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, expenses or liabilities or expenses referred to in therein, then each indemnifying party under this Section 7:
(i) The indemnifying party3.5, 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 or 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 parties the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, 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 parties the underwriters shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Company, such indemnifying party the Selling Holders or indemnified parties, the underwriters and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement 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 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto Holders agree that it would not be just and equitable if contribution pursuant to this Section 7.4 3.5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4, In no event,
(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 3.5 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. The indemnification and contribution provided for in this Section 3.5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties.
(d) Each party entitled to indemnification under this Section 3.5 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, that is a Selling Holder will counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be required unreasonably withheld); and, provided, further, that the failure of any Indemnified Party to contribute give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 3.5, except to the extent the Indemnifying Party is prejudiced in its ability to defend such action, and shall not relieve the Indemnifying Party of any amount liability that it may have otherwise than under this Section 3.5. The Indemnified Party may participate in excess such defense at such party's expense; provided, however, that the Indemnifying Party shall pay such expense if representation of such Indemnified Party by the amount counsel retained by which the total price at which Indemnifying Party would be inappropriate due to actual or potential differing interests between the Registrable Securities sold Indemnified Party and any other party represented by such indemnifying party and distributed to counsel in such proceeding. No Indemnifying Party, in the public were offered to the public exceeds the amount defense of any damages that such indemnifying party has otherwise been required claim or litigation, shall, except with the consent of each Indemnified Party, consent to pay entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by reason the plaintiff or claimant to such Indemnified Party of a release from all liability in respect to such untrue claim or alleged untrue statement litigation, and no Indemnified Party shall consent to entry of any judgment or omission settle any such claim 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.litigation for which
Appears in 1 contract
Sources: Stockholders' Agreement (Affiliated Managers Group Inc)
Indemnification; Contribution. If (a) Incident to any registration of any Registrable Securities are included in a registration statement under pursuant to this Agreement:
7.1. To , the Company will indemnify, reimburse and hold harmless to the fullest extent permitted by applicable law, the Company shall indemnify each underwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and hold harmless each stockholders of any such partners), directors, officers, employees, representatives and agents of any of them) (each, a “Selling Holder”), and each Person, if any, person who controls such Selling Holder any of them within the meaning of Section 15 of the Securities ActAct or Section 20 of the Exchange Act (each, a “Controlling Person”), from and each officer, director, partner, employee and affiliate of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint or severalseveral (including any investigative, legal and other expenses reasonably 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), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
on (i) Any any untrue statement or alleged untrue statement of a material fact contained in such registration statement, statement (including any related preliminary prospectus or final prospectus contained thereindefinitive prospectus, or any amendments amendment or supplements thereto supplement to such registration statement or any documents filed under state securities or “blue sky” laws in connection therewith;
prospectus), (ii) The 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 it not misleading; or
, (iii) Any any violation or alleged violation by the Company of the Securities Act, the Exchange Act, Act or any applicable state securities statutory law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law arising from statutory law, (iv) any failure to register or relating to or in connection with qualify the offer and sale of Registrable Securities pursuant in any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company (the undertaking of any underwriter chosen by the Company being attributed to this Agreementthe Company) will undertake such registration or qualification on the Selling Holder’s behalf (provided that in such instance the Company shall not be so liable if it has undertaken its commercially reasonable best efforts to so register or qualify the Registrable Securities), or (v) any blue sky application or other document executed by the Company specifically for the purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof; provided, however, that the indemnification required by this Section 7.1 shall Company will not apply be liable to amounts paid in settlement of any the extent that such loss, claim, damage, expense or liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company 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 from and in conformity with written information furnished to the Company by the indemnified party expressly for use 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 untrue statement or omission of a material fact contained in such registration statement or alleged untrue statement of a material factor omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder or an omission or alleged omission Controlling Person expressly for use in such registration statement. With respect 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 untrue statement or omission in the final prospectus has not been sent or given to such person at or prior information furnished in writing to the confirmation of sale to Company by such person if such underwriter 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 expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each underwriter, the Company, each of Company (including its directors, each of its officers who shall have signed the registration statementofficers, employees, representatives and agents), each Personother Holder (including its partners (including partners of partners and stockholders of such partners), if anydirectors, who controls the Company within the meaning officers, employees, representatives and agents of the Securities Actany of them, any other Selling Holder, any controlling and each Controlling Person of any such other Selling Holder of them), from and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities expenses and expenses (liabilities, joint and or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwhich they, or to which any of the foregoing Persons them, may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, insofar at common law or otherwise as a direct result of such losses, claims, damages, liabilities and expenses arise out of untrue statement or are based upon any Violation, omission or alleged untrue statement or omission in each case the information furnished in writing to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished Company by such Selling Holder expressly for use in connection with such registration; providedregistration statement, provided that the obligation of the Selling Holder will be several and not joint and several. In no event, however, that (x) shall the indemnification required by this Section 7.2 shall not apply to amounts paid in settlement liability of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant a Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity for indemnification under this Section 7.2 5(a) exceed the gross net proceeds from the applicable offering received by such Selling HolderHolder from its sale of Registrable Securities under such registration statement.
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties, acting reasonably; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceedingb) 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 any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be 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 which 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 such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required provided for in Section 5(a) above for any reason is held by this Section 7 from the indemnifying party is 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 in therein, then each indemnifying party under this Section 7:
(i) The indemnifying party5, 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 or expenses in such proportion as is appropriate to reflect (i) the relative benefits received by the Company, the Selling Holders and the underwriters from the offering of the Registrable Securities and (ii) the relative fault of the indemnifying party Company, the Selling Holders and indemnified parties the underwriters in connection with the actions statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand for registration under Section 3(a) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed solely 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 parties the underwriters shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Company, such indemnifying party the Selling Holders or indemnified parties, the underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities Company and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree each Selling Holder agrees that it would not be just and equitable if contribution pursuant to this Section 7.4 5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in Section 7.4(i)the immediately preceding paragraph. Notwithstanding the provisions of this Section 7.4In no event, an indemnifying party that is however, shall a Selling Holder will not be required to contribute any amount under this Section 5(b) in excess of the amount net proceeds received by which the total price at which the such Selling Holder from its sale of Registrable Securities sold by under such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionregistration statement. No Person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation. The Selling Holder’s obligations pursuant to this Section 5(b) shall be several in proportion to the amount of Registrable Securities registered by it and not joint and several.
(c) The amount required to be paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 5 shall be 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, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or Controlling Person of the indemnified parties. No indemnifying party, in the 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.
Appears in 1 contract