Indemnification; Contribution. (a) The Company shall, to the fullest extent permitted by law, indemnify and hold harmless each Holder 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 Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 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 to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have. (c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed). (d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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) 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 4 contracts
Sources: Registration Rights Agreement (Resolute Holdings Management, Inc.), Registration Rights Agreement (Savers Value Village, Inc.), Registration Rights Agreement (Savers Value Village, Inc.)
Indemnification; Contribution. (a) The In the event of any registration of any securities of the Company shallunder the Securities Act, to the fullest extent permitted by lawCompany will, and hereby does, indemnify and hold harmless each Holder in the case of any registration statement filed pursuant to Section 2 or 3, the holder of any Registrable SecuritiesSecurities covered by such registration statement, 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 directors and indirect general and limited partners, advisory board members, directors, officers, trusteeseach officer and director of each underwriter, managers, members, employees, agents, Affiliates and shareholders, each other person who participates as an underwriter in the offering or sale of such securities and each other Personperson, if any, who acts on behalf of controls such holder or controls any such Holder or Controlling Person (each underwriter within the meaning of the foregoing, a “Covered Person”) Securities Act against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person holder or any such director or officer or participating or controlling person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings or investigations in respect thereof) arise out of or are based upon (ix) any untrue statement or alleged untrue statement of a any material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 registration statement under which such securities were registered under the Securities Act Act, any preliminary prospectus (unless, with respect to the indemnification of the officers and directors of each underwriter and each other person participating as an underwriter, any such statement is corrected in a subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or any successor rule to Rule 405) summary prospectus included therein, or any amendment or supplement to thereto, or any document incorporated by reference in the sametherein, or (iiy) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iiiz) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to laws, and the Company will reimburse such holder and relating to any action or inaction required of the Company in connection with any registration of securities. In additioneach such director, the Company shall reimburse each Covered Person officer, participating person and controlling person for any legal or any other expenses reasonably incurred by such Covered Person them in connection with investigating, investigating or defending or settling any such loss, claim, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; PROVIDED, HOWEVER, that the Company shall not be so liable to any seller, director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, action, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omissionomission 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 in an instrument executed by or under the direction of such seller, director, officer, participating person or controlling person for use in the preparation thereof, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or other document. Such indemnity shall remain in full force and effect regardless of any investigation made by or incorporated on behalf of such seller or any such director, officer, participating person or controlling person and shall survive the transfer of such securities by reference such seller. The Company shall agree to provide for contribution relating to such indemnity as shall be reasonably requested by any seller of Registrable Securities or the underwriters.
(b) The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(a), that the Company shall have received an undertaking satisfactory to it from the prospective sellers of such Registration Statementsecurities and their underwriters, Prospectusto indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 6) the Company, each director of the Company, each officer of the Company who shall sign such registration statement and each other person, if any, who controls the Company within the meaning of the Securities Act, with respect to any statement in or omission from such registration statement, any preliminary Prospectusprospectus, free writing final prospectus or summary prospectus included therein, or any amendment or supplement to thereto, but only if such statement or any document incorporated by reference in the same omission was made in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company through an instrument duly executed by such Covered Person expressly sellers or their underwriters specifically stating that it is for use in the preparation of such Registration Statement, Prospectusregistration statement, preliminary Prospectus prospectus, final prospectus, summary prospectus, amendment or free writing prospectus. 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 participatingsupplement, 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 PROVIDED THAT (i) any untrue 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 to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify provide indemnification pursuant to this Section 11(b6(b) shall be individual and several, and not joint and several, for among such sellers and (ii) the liability of each participating Holder and seller hereunder shall be proportional to and shall not exceed an amount equal limited to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement proportion of any such loss, claim, damage, liabilityliability or expense which is equal to the proportion that the public offering price of the shares sold by such seller under such registration statement bears to the total public offering price of all securities sold thereunder, action but not in any event to exceed the net proceeds received by such seller from the sale of Registrable Securities covered by such registration statement. Such indemnity shall remain in full force and effect regardless of any investigation made by or proceeding if on behalf of the Company or any such settlement is effected without director, officer or controlling person and shall survive the consent transfer of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing securities by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havesellers.
(c) Any Person entitled Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to indemnification pursuant in the preceding subdivisions of this Section 6, such indemnified party will, if a claim in respect thereof is to this Agreement shall be made against an indemnifying party, give prompt written notice to the indemnifying party latter of the commencement of such action; PROVIDED, HOWEVER, that the failure of any claim with respect indemnified party to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subdivisions of this Agreement, Section 6 except to the extent that the indemnifying party is actually party's liabilities and materially prejudiced by reason obligations under this Section 6 are increased as a result of such failure or delayto give notice. In case a claim or an any such action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have to assume the rightdefense thereof, exercisable by giving written notice jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party as promptly as practicable after receipt of written party. After notice from the indemnifying party to such indemnified party of such claim or action, its election so to assume, at the indemnifying party’s expense, assume the defense of any such claim or actionthereof, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 liable to reimburse the such indemnified party for any fees, costs and legal or other expenses subsequently incurred by the indemnified party in connection with such the defense thereof unless (Ai) the indemnifying party has agreed in writing shall have failed to pay such fees, costs and expensesretain counsel for the indemnified party as aforesaid, (Bii) the indemnifying party has failed to 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 action, the indemnifying party fails to employ counsel reasonably acceptable to and the indemnified party or shall have mutually agreed to pursue the defense retention of such claim counsel or action in a reasonably vigorous manner, (Diii) representation of such indemnified party by the use of counsel chosen retained by the indemnifying party would be inappropriate due to represent actual or potential differing interests between such indemnified party and any other person represented by such counsel in such proceeding or the indemnified party would present such counsel with a conflict of interest or (E) the indemnified party has shall have 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs and expenses of more than one firm of attorneys (in addition to any local counsel) for all indemnified parties. The which case the indemnifying party shall not have the right to settle a claim or direct the defense of such action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent on behalf of the indemnified party, The ). No indemnifying party shall not will consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, party of a full and final release from all liability in respect of to such claim or actionlitigation. The indemnifying party shall not be liable under this Agreement for any amount paid or payable or incurred pursuant to or in connection with settlement of any judgment entered or settlement proceeding effected with without the written consent of an indemnified party unless the such indemnifying party has also consented to such judgment or settlement (party, such consent not to be unreasonably withheld, conditioned withheld or delayed), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for Indemnification similar to that specified in this Section 11 is held 6 (with appropriate modifications) shall be given by a court the Company and each seller of competent jurisdiction Registrable Securities with respect to be unavailable to, any required registration or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result other qualification of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as Registrable Securities under any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule regulation or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any governmental authority other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable of fraudulent misrepresentation within the meaning of Section 11(f) of than the Securities Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentationAct.
(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 4 contracts
Sources: Note Purchase Agreement (GenuTec Business Solutions, Inc.), Note Purchase Agreement (Technology Investment Capital Corp), Preferred Stock Purchase Agreement (SeaView Mezzanine Fund L P)
Indemnification; Contribution. (a) The Company shallagrees to indemnify, to the fullest extent permitted by law, indemnify and hold harmless each Holder holder or seller of Registrable Securities, any Securities and each Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries that controls (within the meaning of Section 15 of the Securities Act or Section 20 of and the Exchange Act (each Act) such Personholder or seller, a “Controlling Person”), and their respective direct and indirect general and limited partnersstockholders, advisory board membersofficers, directors, officers, trustees, managers, memberspartners, employees, agents, agents and Affiliates and shareholders, and each other Person, if any, who acts on behalf of or controls any such Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any all losses, claims, actions, damages, liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof and expenseswhether or not such indemnified party is a party thereto), joint or several, and expenses, including attorneys’ fees and disbursements and expenses of investigation (collectively, “Losses”), arising out of, based upon, relating to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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) resulting from any untrue or alleged untrue statement of a material fact contained in any registration statement, prospectus 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 to Rule 405) summary prospectus related thereto or any amendment thereof or supplement to thereto (or any document incorporated by reference in any of the sameforegoing) (collectively, (ii) “Offering Documents”), any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading in light of the circumstances in which they were made, or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar applicable federal or state securities laws law or any rule or regulation promulgated under such federal thereunder, except insofar as the same are caused by or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, the Company shall not be so liable contained 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 information furnished in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person holder expressly for use in such Registration Statementtherein. In connection with an underwritten offering, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise haveshall indemnify such underwriters, their stockholders, officers, directors, partners, employees, agents and Affiliates and each Person who controls (within the meaning of the Securities Act and the Exchange Act) such underwriters to the same extent as provided above with respect to the indemnification of the holders or sellers of Registrable Securities.
(b) In connection with any registration statement filed by the Company pursuant to Section 1 or Section 2 hereof in which a Holder holder of Registrable Securities is participating, each such Holder holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement registration statement or Prospectus. Each Holder shallprospectus and, to the fullest extent permitted by law, shall, on a several and not joint basis, indemnify and hold harmless the Company, its directors and stockholders, directors, officers, partners, employees, agents and any Affiliates and each Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any controls (within the meaning of them may become subject under the Securities Act, Act and the Exchange Act) the Company against any Losses arising out of, any state blue sky securities lawsbased upon, any equivalent non-U.S. securities laws relating to or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise out of or are based upon (i) resulting from any untrue 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 any Offering Documents or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein not misleading in light of the same not misleadingcircumstances under which they were made, but, in the case of each of clauses (i) and (ii), but only to the extent that such untrue statement or alleged untrue statement, or omission or alleged omission, is made contained in such Registration Statement, Prospectus, preliminary Prospectus, free any writing prospectus or any amendment or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder holder expressly for use in therein; provided however that such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) liability shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal limited to the net amount of proceeds (after deducting Selling Expenses) actually received by such Holder in holder from the sale of Registrable Securities pursuant to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveregistration statement.
(c) Any Person entitled to indemnification pursuant to this Agreement hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding indemnification (provided that the previous sentence, any failure or delay to so notify the indemnifying party give prompt notice shall not relieve the indemnifying party of its obligations under this Agreement, except impair any Person’s right to indemnification hereunder to the extent that such failure has not actually prejudiced the indemnifying party is actually party) and materially prejudiced by reason (ii) unless in such indemnified party’s reasonable judgment (x) a conflict of interest between such failure or delay. In case a indemnified and indemnifying parties may exist with respect to such claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement 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 (y) such indemnified party of has one or more defenses to such claim or action, that are not available to assume, at the indemnifying party’s expense, the defense of any permit such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of with counsel reasonably satisfactory to the indemnified party at such claim or action, (C) having assumed the indemnifying party’s own expense. If such defense of such claim or actionis assumed, the indemnifying party fails to employ counsel reasonably acceptable to shall not settle such claim unless the indemnified party is released and discharged of any and all liability. Whether or not such defense is assumed, the indemnifying party shall not be subject to pursue any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of such a claim or action in a reasonably vigorous manner, (D) shall not be obligated to pay the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs fees and expenses of more than one firm of attorneys (in addition to any local counsel) counsel for all parties indemnified parties. The by such indemnifying party shall not have the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating with respect 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)claim.
(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 stockholder, officer, director, employee, partner, agent or Affiliate or controlling (within the meaning of the Securities Act and the Exchange Act) Person of such indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in required by this Section 11 6 from the indemnifying party is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an indemnified party hereunder in respect of any loss, claim, action, damage, liability or expense Losses referred to in this Section 11, then the applicable 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party under this Agreementparty, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense Losses in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, fault of the indemnifying party shall contribute to such amount and indemnified parties in connection with the actions which resulted in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying partyLosses, as well as any other relevant equitable considerations. The If the allocation provided by clause (i) is not permitted by applicable law, then the allocation shall be in such proportion as shall be appropriate to reflect the relative fault of benefits received by the indemnifying partyCompany, on the one hand, and of the indemnified partysuch prospective sellers, on the other hand, from their sale of Registrable Securities; provided that the relative benefits received by the prospective sellers shall be deemed not to exceed the net proceeds received by such sellers. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party or by the indemnified partyparties, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The amount paid or payable by a party as a result of Losses shall be deemed to include, subject to the limitations set forth in Section 6(a) and Section 6(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. The obligations, if any, of the selling holders to contribute as provided in this Section 6(e) are several in proportion to the relative value of their respective Registrable Securities covered by such registration statement and not joint. In addition, no Person shall be obligated to contribute hereunder any amounts in payment for any settlement of any action or Loss effected without such Person’s consent, which shall not be unreasonably withheld.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Agreement Section 6(e) were determined solely by pro rata allocation or by any other method or of allocation that which does not take into account the equitable considerations referred to in this Section 11(d6(e)(i). In no event shall ; provided, however, that with respect to any pro rata allocation, the amount which a Holder holders of Registrable Securities may included in any such registration shall be obligated deemed to contribute pursuant to this Section 11(d) exceed an amount equal to have only received the net proceeds (after deducting Selling Expenses) actually received by from such Holder in the sale holders’ sales of Registrable Securities that gives rise to in such obligation to contributeregistration. No indemnified party Person 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 3 contracts
Sources: Registration Rights Agreement (Lear Corp), Registration Rights Agreement (Lear Corp), Registration Rights Agreement (Lear Corp)
Indemnification; Contribution. (a) The Company shall, agrees to the fullest extent permitted by law, indemnify and hold harmless (i) the Holder, (ii) each Holder of Registrable Securities, any other Person who is participates as an underwriter in the offering or might be deemed to be a “controlling sale of such securities, (iii) each person” of the Company or any of its subsidiaries , if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act) the Holder or underwriter (each such Person, any of the persons referred to in this clause (iii) being hereinafter referred to as a “Controlling Person”), their "controlling person") and (iv) the respective direct and indirect general and limited partners, advisory board membersofficers, directors, officers, trustees, managers, memberspartners, employees, agents, Affiliates representatives and shareholders, and each other Person, if any, who acts on behalf agents of or controls any such the Holder or Controlling Person underwriter or any controlling person (each of any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the foregoingfullest extent lawful, a “Covered Person”) from and against any and all losses, claims, actions, damages, liabilities and liabilities, judgments or expenses, joint or severalseveral (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such Covered indemnified Person may become subject under either Section 15 of the Securities Act, Act or Section 20 of the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus Statement or Prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto), or any document incorporated by reference in the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged a violation by the Company of the Securities Act or any other similar federal or state securities laws law, or any rule or regulation promulgated under such federal the Securities Act or any state securities laws law, or any other law applicable to the Company and relating to any action such registration or inaction required of the Company in connection with any registration of securities. In additionqualification, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, except insofar as such losses, claims, actions, damages, liabilities liabilities, judgments or expenses arise out of any such indemnified Person; (x) are caused by any such untrue statement or are based upon (i) any untrue omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of a material fact contained in any of such indemnified Person expressly for use therein; (y) with respect to the Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under result from the fact that the Holder sold Securities Act to a person to whom there was not sent or any successor rule to Rule 405) given, at or any amendment of or supplement prior to the same or (ii) any omission or alleged omission written confirmation of such sale, a material fact required to be stated in such Registration Statement, copy of the Prospectus, preliminary Prospectus as amended or free writing prospectus or necessary to make supplemented, if the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only Company shall have previously furnished copies thereof to the extent that Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or alleged untrue statementomission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Blackout Notice or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to a notice from the Company of the existence of any fact of the kind described in Section 2.4(b)(iv), the indemnified Person or the Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder shall reimburse the Company, its directors and officers, employees, agents and on behalf of any indemnified 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to survive the net proceeds (after deducting Selling Expenses) actually received transfer of such securities by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders In case any action shall be brought or asserted against any of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim indemnified Persons with respect to which it seeks indemnification. Notwithstanding indemnity may be sought against the previous sentenceCompany, any failure or delay to so such indemnified Person shall promptly notify the indemnifying party Company and the Company shall not relieve assume the indemnifying party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delaydefense thereof. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an Such indemnified party, the indemnifying party shall be entitled to participate in and Person shall have the right, exercisable by giving written notice right 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 employ separate counsel in any such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to be entitled action and to participate in the defense of such claim or action, with counsel of its own choicethereof, but the indemnifying party fees and expenses of such counsel shall not be obligated to reimburse at the expense of the indemnified party for any fees, costs and expenses subsequently incurred Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the indemnified party in connection with such defense unless Company, (Aii) the indemnifying party has agreed in writing to pay such fees, costs and expenses, (B) the indemnifying party has Company shall have failed to 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 action, the indemnifying party fails to and employ counsel reasonably acceptable or (iii) the named parties to any such action (including any implied parties) include both the indemnified party or to pursue Person and the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by the indemnifying party to represent Company and the indemnified party would present such Person shall have been advised in writing by its counsel with a conflict of interest 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 Company (in which case the Company shall not have the right to assume the foregoing sentencedefense of such action on behalf of the indemnified Person), no indemnifying party shallit being understood, however, that the Company shall not, in connection with any one claim or such action or separate but substantially similar or related actions in the same jurisdiction or proceedings arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees, costs reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified partiesPersons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. The indemnifying party Company shall not have be liable for any settlement of any such action or proceeding effected without the right Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to settle a claim or action for which indemnify and hold harmless any indemnified party is entitled to indemnification pursuant to this Agreement without 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 partyPerson, The indemnifying party shall not settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any judgment pending or enter into threatened action, claim, litigation or agree to proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any settlement relating to such claim or action indemnified Person is a party thereto), unless such judgment settlement, compromise, consent or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and termination includes as an unconditional term release of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement to such each indemnified party, in form and substance reasonably satisfactory to such indemnified party, of a full and final release Person from all liability arising out of such action, claim litigation or proceeding.
(b) The Holder agrees 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) with respect to actions based on information relating to the Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Holder from the sale or other disposition of its Restricted 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 the Holder, such claim or action. The indemnifying party Holder shall have the rights and duties given the Company in Section 2.8(a) (except that the Holder may but shall not be liable under this Agreement for any amount paid required to assume the defense thereof), and the Company or payable its directors or incurred pursuant officers or such controlling person shall have the rights and duties given to or in connection with any judgment entered or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayedHolder by Section 2.8(a).
(dc) If the indemnification provided for in this Section 11 2.8 is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losslosses, claimclaims, actiondamages, damageliabilities, liability judgments or expense expenses referred to in this Section 11therein, then the each applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreementparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims damages, actionliabilities, damage, liability judgments or expense expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company on the one hand and the indemnifying party. If Holder on the other hand from sale of Restricted Securities or (ii) if such allocation provided by the preceding sentence clause (i) above is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence clause (i) above but also the relative fault of the indemnified party Company and the indemnifying partyHolder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, Company on the one hand, hand and of the indemnified party, Holder on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Company or by the indemnified party, whether Holder and the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties amount paid 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 2.8(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and the Holder agree that it would not be just and equitable if contribution pursuant to this Agreement Section 2.8(c) were determined by pro rata allocation or by any other method or of allocation that which does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d). In no event 2.8(c) the Holder (and its related indemnified Persons) shall not be required to contribute, in the aggregate, any amount in excess of the amount by which a Holder the dollar amount of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in upon the sale of Registrable the Restricted Securities that gives rise exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such obligation to contributeuntrue statement or omission or alleged omission. No indemnified party person guilty or liable of fraudulent misrepresentation misrepresentations (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 indemnity, and contribution provisions of contained in this Section 11 shall remain 2.8 are in full force and effect regardless of addition to any investigation made by or on behalf of any liability which the indemnifying person may otherwise have to the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the Transfer of any Registrable Securities by any Holderpersons referred to above.
Appears in 3 contracts
Sources: Registration Rights Agreement (Compost America Holding Co Inc), Registration Rights Agreement (Compost America Holding Co Inc), Registration Rights Agreement (Compost America Holding Co Inc)
Indemnification; Contribution. (a) The Company shall, to the fullest extent permitted by law, will indemnify and hold harmless each Holder 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, holder and each other Personaffiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, if any, who acts on behalf of or controls under any such Holder Blue Sky Law or Controlling Person (each of the foregoing, a “Covered Person”) regulation against any losses, claims, actions, damages, liabilities and expensesor liabilities, joint or several, to which such Covered Person holder may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statementpreliminary prospectus, Prospectusregistration statement, preliminary Prospectusprospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto, or any document incorporated by reference in arise out of or are based upon the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company misleading, and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall will reimburse each Covered Person such holder and affiliate for any legal or other expenses reasonably incurred by such Covered Person holder in connection with investigating, investigating or defending or settling any such lossaction or claim regardless of the negligence of any such holder or affiliate; provided, claimhowever, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable in any such case to the extent that any such loss, claim, action, damage, or liability or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omission, omission made or incorporated by reference in any such Registration Statementpreliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any such amendment or supplement to or any document incorporated by reference in the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by any such Covered Person holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder Each holder of Registrable Securities is participating, each such Holder shall furnish Common Stock registered pursuant to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, this Agreement will indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person Company against any losses, claims, actions, damages, or liabilities and expenses, joint or several, to which they or any of them the Company may become subject subject, under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement thereto, or arise out of or supplement to are based upon the same or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butin each case to the extent, in the case of each of clauses (i) and (ii), but only to the extent extent, that such untrue statement or alleged untrue statement, statement or omission or alleged omission, is omission was made in such Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havetherein.
(c) Any Person entitled Promptly after receipt by an indemnified party under Sections 7(a) or (b) above of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to indemnification pursuant to this Agreement shall give prompt written notice to be made against the indemnifying party under either such subsection, notify the indemnifying party in writing of any claim with respect the commencement thereof; but the omission so to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so 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 its obligations under this Agreement, 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 pursuant to this Agreement is brought against an indemnified party, commencement thereof 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, assume the defense of any such claim or action, with counsel reasonably acceptable thereof by notice in writing to the indemnified party. Notwithstanding After notice from the previous sentence, any indemnifying party to such indemnified party shall continue of its election to be entitled to participate in assume the defense of such claim or actionthereof, with counsel of its own choice, but the indemnifying party shall not be obligated liable to reimburse the such indemnified party under either of such subsections for any feeslegal expenses of other counsel or any other expense, costs and expenses in each case subsequently incurred by the such indemnified party party, in connection with such the defense unless (A) thereof other than reasonable costs of investigation incurred prior to the assumption by the indemnifying party has agreed party, unless such expenses have been specifically authorized in writing to pay such feesby the indemnifying party, costs and expenses, (B) the indemnifying party has failed to assume the defense and 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 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 action, indemnified party and the indemnifying party fails by the same counsel would be inappropriate due to employ actual or potential differing interests between them, in each of which cases the fees of counsel reasonably acceptable to for the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen will be paid by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 7 is held by a court of competent jurisdiction unavailable or insufficient to be unavailable to, or unenforceable by, hold harmless an indemnified party under Section 7(a) or 7(b) in respect of any losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or action in respect thereof) referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company and the indemnifying partyholder or holders from this Agreement and from the offering of the shares of Common Stock. If If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, the 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 the such relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Company and the indemnifying partyholders in connection with the statement or omissions that resulted in such losses, claims, damages, or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Agreement Section 7(d) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method or of allocation that does not take into account the equitable considerations referred to above in this subsection (d). Except as provided in Section 7(c), the amount paid or payable by an indemnified party as a result of the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above in this Section 11(d). In no event 7(d) shall the amount which a Holder of Registrable Securities may be obligated deemed to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received include any legal or other expenses reasonably incurred by such Holder indemnified party in the sale of Registrable Securities that gives rise to connection with investigation or defending any such obligation to contributeaction or claim. No indemnified party person 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 person who was not guilty of such fraudulent misrepresentation. Notwithstanding any provision in this Section 7(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 provisions obligations of the Company under this Section 11 7 shall remain be in full force and effect regardless of addition to any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party liability that the Company may otherwise have and shall survive extend, upon the Transfer 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 7 shall be in addition to any Registrable Securities by any Holderliability 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 2 contracts
Sources: Warrant Agreement (Talisman Enterprise Inc), Warrant Agreement (Talisman Enterprise Inc)
Indemnification; Contribution. (a) The Company shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to time, indemnify, defend and hold harmless, to the fullest full extent permitted by law, indemnify and hold harmless each Holder holder of Registrable Securities, any the partners, members, officers, directors, agents and employees of each of them, each Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries controls each such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Person, a “Controlling Person”Act), their respective direct and indirect general and limited the partners, advisory board members, officers, directors, officers, trustees, managers, members, employees, agents, Affiliates agents and shareholders, employees of each such controlling person and each other Person, if any, who acts on behalf of any financial or controls any such Holder or Controlling Person investment adviser (each of the foregoingeach, a “Covered Person”) ), to the fullest extent lawful, from and against any and all losses, claims, actions, damages, liabilities liabilities, actions or proceedings (whether commenced or threatened), costs (including, without limitation, costs of preparation and expensesattorneys’ fees) and expenses (including expenses of investigation) (collectively, joint or several“Losses”), to which such Covered Person may become subject under the Securities Actas incurred, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) any untrue 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 or form of prospectus or in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to supplements thereto or in any document incorporated by reference in the samepreliminary prospectus, (ii) or arising out of or based upon any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in therein not misleading, except to the extent that the same not misleading arise out of or are based upon information furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (iiiii) any violation or alleged violation by the Company of the Securities Act any federal, state or any other similar federal or state securities laws or any common law rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action required of or inaction required of by the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, registration; provided that the Company shall not be so liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such case underwriters within the meaning of the Securities Act to the extent that any loss, claim, action, damage, liability or expense arises such Losses arise out of or is are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (i) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (ii) the prospectus would have corrected such untrue statement or alleged untrue statement, statement or such omission or alleged omission, and (iii) the Company has complied with its obligations under Section 5D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or incorporated by reference on behalf of such Covered Person. If the Public Offering pursuant to any registration statement provided for under this Section 5 is made through underwriters, no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence. If the Public Offering pursuant to any registration statement provided for under this Article 5 is made through underwriters, the Company agrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 5F with respect to the indemnification of the holders of Registrable Securities; provided that the Company shall not be required to indemnify any such Registration Statementunderwriter, Prospectus, preliminary Prospectus, free writing prospectus or any amendment officer, director or supplement to employee of such underwriter or any document incorporated by reference in Person who controls such underwriter within the same in reliance uponmeaning of Section 15 of the Securities Act, and in conformity with, written information prepared and furnished to the Company by extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such Covered underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person expressly for use asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such Registration Statement, Prospectus, preliminary Prospectus amended or free writing supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In connection with any registration Registration Statement in which a Holder holder of Registrable Securities is participating, each such Holder holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shallprospectus and agrees, severally and not jointly, to indemnify, defend and hold harmless to the fullest full extent permitted by law, indemnify and hold harmless the Company, its directors and directors, officers, employees, agents and any employees, each Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any controls the Company (within the meaning of them may become subject under Section 15 of the Securities Act, Act and Section 20 of the Exchange Act), any state blue sky securities lawsand the partners, any equivalent non-U.S. securities laws members, directors, officers, agents or otherwiseemployees of such controlling persons, insofar as such losses, claims, actions, damages, liabilities or expenses arise from and against all Losses arising out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the any Registration Statement, Prospectusprospectus, preliminary Prospectusor form of prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment arising out of or supplement to the same or (ii) based upon any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butto the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided that such holder of Registrable Securities shall not be liable in any such case of each of clauses (i) and (ii), only to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such untrue statement Registration Statement or alleged untrue statement, prospectus or omission amendment or alleged omission, is made supplement thereto information expressly for use in such Registration Statement, Prospectus, preliminary Prospectus, free writing Statement or prospectus or any amendment or supplement to the same in reliance uponthereto which corrected or made not misleading, and in conformity with, written information prepared and previously furnished to the Company, and the Company by failed to include such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectusinformation therein. In addition, such Holder no event shall reimburse the Company, its directors liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(btherewith) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in holder upon the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge giving rise to such indemnification obligation. Such indemnity shall remain in full force and agree that, unless otherwise expressly agreed to in writing effect regardless of any investigation made by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address on behalf of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveindemnified party.
(c) Any If any Person shall be entitled to indemnification pursuant to this Agreement indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall give prompt written notice to the indemnifying party or parties from which such indemnity is sought (the “Indemnifying Parties”) of the commencement of any claim action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which it such Indemnified Party seeks indemnification. Notwithstanding indemnification or contribution pursuant hereto; provided that the previous sentence, any failure or delay to so notify the indemnifying party Indemnifying Parties shall not relieve the indemnifying party of its obligations under this Agreement, Indemnifying Parties from any obligation or liability except to the extent that the indemnifying party is actually and materially Indemnifying Parties have been prejudiced by reason of such failure or delayfailure. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and The Indemnifying Parties shall have the right, exercisable by giving written notice to an Indemnified Party promptly after the indemnified party as promptly as practicable after receipt of written notice from such indemnified party Indemnified Party of such claim or actionProceeding, to assume, at the indemnifying party’s Indemnifying Parties’ expense, the defense of any such claim or actionProceeding, with counsel reasonably acceptable satisfactory to such Indemnified Party; provided that an Indemnified Party or parties (if more than one such Indemnified Party is named in any Proceeding) shall have the indemnified party. Notwithstanding the previous sentence, right to employ separate counsel in any indemnified party shall continue to be entitled such Proceeding and to participate in the defense of such claim or action, with counsel of its own choicethereof, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs fees and expenses subsequently incurred by of such counsel shall be at the indemnified party in connection with expense of such defense unless Indemnified Party or parties unless: (Ai) the indemnifying party has agreed in writing Indemnifying Parties agree to pay such fees, costs fees and expenses, ; (Bii) the indemnifying party has failed Indemnifying Parties fail promptly to assume the defense of such claim Proceeding or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails fail to employ counsel reasonably acceptable satisfactory to the indemnified party such Indemnified Party or to pursue the defense of such claim parties; or action in a reasonably vigorous manner, (Diii) the use named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party or parties and the Indemnifying Parties or an Affiliate of counsel chosen by the indemnifying party to represent the indemnified party would present Indemnifying Parties or such counsel with a conflict of interest or (E) the indemnified party has reasonably concluded that Indemnified Parties, and there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which such Indemnified Party or parties that are different from or additional to those available to the indemnifying party. Subject Indemnifying Parties, in which case, if such Indemnified Party or parties notifies the Indemnifying Parties in writing that it elects to employ separate counsel at the foregoing sentenceexpense of the Indemnifying Parties, no indemnifying party shallthe Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one claim or action such Proceeding or separate but substantially similar or related actions Proceedings in the same jurisdiction jurisdiction, arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees, costs fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all indemnified such Indemnified Party or parties. The indemnifying party Whether or not such defense is assumed by the Indemnifying Parties, such Indemnifying Parties or Indemnified Party or parties shall not have the right be subject to settle a claim any liability for any settlement made without its or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the their consent of the indemnified party, (but such consent shall not be unreasonably withheld). The indemnifying party Indemnifying Parties shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim which (i) provides for other than monetary damages without the consent of the Indemnified Party or action unless such judgment parties (which consent shall not be unreasonably withheld or settlement delayed) or (ii) does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified partyIndemnified Party or parties of a release, in form and substance reasonably satisfactory to such indemnified partythe Indemnified Party or parties, of a full and final release from all liability in respect of such claim or action. The indemnifying party shall not Proceeding for which such Indemnified Party would be liable under this Agreement for any amount paid or payable or incurred pursuant entitled to or in connection with any judgment entered or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)indemnification hereunder.
(d) If the indemnification provided for in this Section 11 5F is held by a court of competent jurisdiction unavailable to be unavailable to, an Indemnified Party or unenforceable by, an indemnified party is insufficient to hold such Indemnified Party harmless for any Losses in respect of any loss, claim, action, damage, liability or expense referred to in which this Section 115F would otherwise apply by its terms, then the each applicable indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall have an obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossLosses, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnifying Party, on the one hand, and such Indemnified Party, on the indemnifying partyother hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the indemnifying partysuch Indemnifying Party, on the one hand, and of the indemnified partyIndemnified Party, on the other hand, shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the indemnifying party by, such Indemnifying Party or by the indemnified partyIndemnified Party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such statementaction, omission statement or violationomission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 5F(a) or 5F(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Agreement Section 5F(d) were determined by pro rata allocation or by any other method or of allocation that does not take into account of the equitable considerations referred to in this Section 11(d5F(d). In no event shall Notwithstanding the amount which provisions of this Section 5F(d), an Indemnifying Party that is a Holder holder of Registrable Securities may shall not be obligated required to contribute pursuant to this Section 11(d) exceed an any amount equal to in excess of the amount by which the net proceeds (after deducting Selling Expenses) actually received by such Holder in Indemnifying Party exceeds the sale amount of Registrable Securities any damages that gives rise such Indemnifying Party has otherwise been required to pay by reasons of such obligation to contributeuntrue or alleged untrue statement or omission or alleged omission. No indemnified party person 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: Securityholders Agreement (Vitamin Shoppe, Inc.), Securityholders Agreement (Vs Holdings, Inc.)
Indemnification; Contribution. (a) The Company shall, to the fullest extent permitted by law, indemnify and hold harmless each Holder of Registrable Securities, any Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries such Holder 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 Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue blue-sky securities 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 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 to Rule 405thereto) or any amendment thereof or supplement to thereto or any document incorporated by reference in the sametherein, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence; provided, 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 (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement to thereto or any document incorporated by reference in the same therein in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectustherein. 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. Each Holder Prospectus and shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents agents, Affiliates and shareholders and any Person who is or might be deemed to be a Controlling Person with respect to the Company against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue blue-sky securities 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405thereto) or any amendment of thereof or supplement to the same thereto or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein, in the same case of any Prospectus, preliminary prospectus, free writing prospectus or any supplement thereto, in light of the circumstances under which made, not misleading, but, in the case of each of clauses (i) and (ii), only 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 (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement to the same thereto in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statementtherein, Prospectus, preliminary Prospectus or free writing prospectus. In addition, and such Holder shall reimburse the Company, its directors and officers, employees, agents agents, Affiliates and shareholders 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 investigating, defending or settling any such loss, claim, action, damage or liability. The ; provided, that the obligation to indemnify pursuant to this Section 11(b13(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock Equity Securities by such Holder and its Affiliates, (b) the name and address of such Holder and any other beneficial owner of such Holder’s Registrable Securities and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence; provided, that any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreementhereunder, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence; provided, that any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 or to pursue the defense of such claim or action in a reasonably vigorous mannerparty, (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 (E) the indemnified party has reasonably concluded upon the 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 additional to those available to the indemnifying party. Subject to the foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs and expenses of more than one (1) 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 entitled to indemnification pursuant to this Agreement hereunder without the consent of the indemnified party, The and the indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action action, unless such judgment or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 13 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11herein, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreementhereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, on the one hand, and of the indemnified party, on the other hand, in connection with the statements, omissions or violations which resulted in such loss, claim, action, damage, liability or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law thereunder applicable to the Company, and, Company and relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction securities was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to , and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement hereto were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d13(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d13(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable of “fraudulent misrepresentation 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) The provisions of this Section 11 13 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 Controlling Person of such indemnified party and shall survive the Transfer of any Registrable Securities by any Holder.
Appears in 2 contracts
Sources: Shareholder Agreement (Riot Blockchain, Inc.), Stock Purchase Agreement (Riot Blockchain, Inc.)
Indemnification; Contribution. (a) The Company shallIn connection with any registration of Registrable Securities pursuant to this Article III, Parent agrees to indemnify and hold harmless, to the fullest extent permitted by lawLaw, indemnify each of the Investors and hold harmless their respective Affiliates, the Investors’ Representative and each Holder of Registrable Securitiesits Affiliates, any and each Person who is controls an Investor or might be deemed to be a “controlling person” of the Company or any of its subsidiaries Investors’ Representative within the meaning of either 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, the directors, officers, trusteesemployees, partners, affiliates, members, managers, memberstrustees, employees, agents, Affiliates and shareholders, assignees and each other Person, if any, who acts on behalf representatives of or controls any such Holder or Controlling Person (each of the foregoingforegoing (collectively, a the “Covered PersonIndemnified Persons”) from and against any and all losses, claims, actions, damages, liabilities liabilities, judgments, actions and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 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 to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company including reasonable attorneys’ fees and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 actually incurred by them in connection with investigating, defending or settling any such losses, claims, damages, liabilities, actions or proceedings) (“Losses”) joint or several arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any part of any Registration Statement, any preliminary or final prospectus or other disclosure document used in connection with the Registrable Securities, any Issuer FWP or any amendment or supplement to any of the foregoing, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any violation or alleged violation by Parent or any of its Subsidiaries of any federal, state, foreign or common law rule or regulation applicable to Parent or any of its Subsidiaries and relating to action or inaction in connection with any such registration, Registration Statement, other disclosure document or Issuer FWP; provided, however, that Parent will not be required to indemnify any Indemnified Person for any losses, claims, damages, liabilities, judgments, actions or expenses resulting from any such untrue statement or omission if such untrue statement or omission was made in conformity with information with respect to such Indemnified Person or related Investors furnished to Parent in writing by or on behalf of such related Investors expressly for use therein.
(b) In connection with any Registration Statement, preliminary or final prospectus, or Issuer FWP, in which an Investor is participating, each such Investor agrees to indemnify, severally and not jointly, Parent, its Directors, its officers who sign such Registration Statement and each Person, if any, who controls Parent (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 Parent to the Investors, but only with respect to information with respect to such Investor furnished to Parent in writing by such Investor expressly for use in such Registration Statement, preliminary or final prospectus, or Issuer FWP to the extent such information is included therein in reliance upon and in conformity with the information furnished to Parent by such Investor expressly for use therein; provided, however, that in no event shall any Investor’s liability pursuant to this Section 2.08 in respect of the offering to which such loss, claim, actiondamages, damage liabilities, judgments, actions or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not expenses relate exceed an amount equal to the net proceeds to such Investor (after deducting Selling Expensesdeduction of all Underwriters’ discounts and commissions) actually received by from such Holder in offering less the sale amount of Registrable Securities to any damages which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply Investor has otherwise been required to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent pay by reason of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveinformation.
(c) Any In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person entitled to indemnification in respect of which indemnity may be sought pursuant to this Agreement shall give prompt written notice to Section 2.08(a) or Section 2.08(b), such Person (hereinafter called the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so “indemnified party”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party party”) in writing; provided, however, that the failure to give such notice shall not relieve the indemnifying party of its obligations under pursuant to this Agreement, Agreement except to the extent that such indemnifying party has been prejudiced in any material respect by such failure and (ii) permit the indemnifying party is actually and materially prejudiced by reason to assume the defense of such failure claim, action or delay. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement 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 proceeding with counsel reasonably satisfactory to the indemnified party as promptly as practicable after receipt of written notice from such to represent the indemnified party (in which case, indemnifying party shall pay the fees and disbursements of such claim counsel related to such claim, action or action, to assume, at the indemnifying party’s expense, the defense of proceeding). In any such claim claim, action or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentenceproceeding, any indemnified party shall continue will have the right to be entitled to participate in the defense of such claim or action, with counsel of retain its own choicecounsel, but the indemnifying party shall not fees and expenses of such counsel will be obligated to reimburse at the expense of such indemnified party for any fees(without prejudice to such indemnified party’s indemnity and other rights under the Charter, costs Bylaws and expenses subsequently incurred by the indemnified party in connection with such defense applicable Law, if any) unless (A) the indemnifying party has and the indemnified party have mutually agreed in writing to pay the retention of such fees, costs and expensescounsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel, with a copy provided to Parent, that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them, (C) the indemnifying party has failed to assume the defense of such claim and employ counsel reasonably satisfactory to the indemnified party, or (D) any such, claim, action within or proceeding is a reasonable time after receipt of notice of such claim criminal or regulatory enforcement action, (C) having assumed the defense of such claim or action, . It is understood that 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 (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 foregoing sentence, no indemnifying party shallwill not, in connection with any one claim or claim, action or separate but substantially similar proceeding or related claims, actions or proceedings in the same jurisdiction arising out of the same general circumstances or allegationsjurisdiction, be liable for the fees, costs reasonable fees and expenses of more than one separate firm of attorneys for the indemnified parties (in addition to any local counsel) counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (D) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party shall not have the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall will not be liable under this Agreement for any amount paid settlement of any claim, action or payable or incurred pursuant to or in connection with any judgment entered or settlement proceeding effected with the without its written consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such which consent shall not to be unreasonably withheld, conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final non-appealable judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 2.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party has not reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding (i) in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding or (ii) which involves the imposition of equitable remedies on the indemnified party or the imposition of any obligation on the indemnified party, other than as a result of the imposition of financial obligations for which the indemnified person will be indemnified hereunder and provides for no admission of wrongdoing on the part thereof.
(d) If the indemnification provided for in this Section 11 2.08 from the indemnifying party is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an indemnified party hereunder in respect of any losslosses, claimclaims, actiondamages, damageliabilities, liability judgments, actions or expense expenses referred to in this Section 112.08, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreementparty, shall will contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damageliabilities, liability judgments, actions or expense expenses (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the indemnifying party and indemnified party and in connection with the indemnifying party. If actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by the preceding sentence clause (i) is not permitted by applicable lawLaw, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits fault referred to in the preceding sentence clause (i) but also the relative fault benefit of ▇▇▇▇▇▇, on the indemnified party one hand, and the indemnifying partyInvestors, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of the such indemnifying party, on the one hand, party and of the indemnified party, on the other hand, shall party will be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the by, such indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statementaction. The amount paid or payable by a party as a result of the losses, omission claims, damages, liabilities and expenses referred to above will be deemed to include, subject to the limitations set forth in Section 2.08(c), any legal or violation. other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(e) The parties agree that it would not be just and equitable if contribution pursuant to this Agreement Section 2.08(d) were determined by pro rata allocation or by any other method or of allocation that does not take into account the equitable considerations referred to in this Section 11(d2.08(d). In no event shall the amount which a Holder No Person guilty of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds “fraudulent misrepresentation” (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of Section 2.08(d) and this Section 2.08(e), each Investor’s liability pursuant to Section 2.08(d) in respect of the offering to which such loss, claim, damages, liabilities, judgments, actions or expenses relate shall not exceed an amount equal to the proceeds to such Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the amount of any damages which such Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each Investor’s obligation to contribute pursuant to this Section 2.08 is several in proportion to the respective number of Registrable Securities held by such Investor hereunder and not joint.
(ef) The provisions For purposes of this Section 11 2.08, each Indemnified Person shall remain have the same rights to contribution as such Investor, and each officer, Director and Person, if any, who controls Parent within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as Parent, subject in full force and effect regardless each case to the limitations set forth in the immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any investigation action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 2.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 2.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any action or on behalf claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld.
(g) If indemnification is available under this Section 2.08, the indemnifying party will indemnify each indemnified party to the full extent provided in Section 2.08(a) and Section 2.08(b) without regard to the relative fault of any said indemnifying party or indemnified party or any officer, director other equitable consideration provided for in Section 2.08(d) or controlling person of such indemnified party and shall survive the Transfer of any Registrable Securities by any HolderSection 2.08(e).
Appears in 2 contracts
Sources: Investor Rights Agreement (Forward Air Corp), Investor Rights Agreement (Forward Air Corp)
Indemnification; Contribution. (a) The Company shallDealer Manager will indemnify, defend (subject to Section 4 of the fullest extent permitted by law, indemnify Dealer Manager Agreement) and hold harmless each Holder of Registrable Securitiesthe Wholesaler, any Person who is or might be deemed to be a its affiliates and their respective officers, directors, shareholders, members, partners, other equity-holders and control persons (collectively, the “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 PersonOther Indemnified Parties”), their respective direct from 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 Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claimsclaims (including the reasonable costs of investigation and legal fees), actions, damages, damages or liabilities and expenses, joint (or severalactions in respect thereof), to which such Covered Person the Wholesaler, its affiliates or their respective Other Indemnified Parties may become subject under the Securities Act, Act or the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, damages or liabilities (or expenses actions in respect thereof) arise out of or are based upon upon: (i) any untrue inaccuracy in or alleged untrue statement breach of a material fact representation or warranty contained in herein by the Dealer Manager, any breach of a covenant or incorporated by reference in any Registration Statementagreement contained herein of the Dealer Manager, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule failure by the Dealer Manager to Rule 405) comply with state or any amendment or supplement federal securities law applicable to or any document incorporated by reference in the same, Offering; (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (as defined information relating to the Dealer Manager that appears in Rule 405 under the Securities Act or any successor rule to Rule 405) Dealer Manager Sections of the Prospectus or any amendment thereof, or arise out of or supplement to are based upon the same or (ii) any omission or alleged omission of to state in the Dealer Manager Sections a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein, in light of the same circumstances under which they were made, not misleading, but, in the case of each of clauses (i) ; and (ii), only to iii) any unauthorized use of sales materials or use of unauthorized verbal representations concerning 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 or supplement to Offered Shares by the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectusDealer Manager. In addition, such Holder shall The Dealer Manager will reimburse the Company, Wholesaler and its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person Other Indemnified Parties for any legal or other expenses reasonably incurred by them such Wholesaler, its affiliates and their respective Other Indemnified Parties in connection with investigating, investigating or defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action liability or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, action.
(b) The Wholesaler will indemnify, defend and hold harmless the name Dealer Manager, the Company and address their respective Other Indemnified Parties, from and against any losses, claims (including the reasonable costs of investigation and legal fees), damages or liabilities (or actions in respect thereof), to which the Dealer Manager, the Company and any of their respective Other Indemnified Parties may become subject under the Securities Act or the Exchange Act, or otherwise, insofar as such Holder losses, claims (including the reasonable costs of investigation and legal fees), damages or liabilities (or actions in respect thereof) arise out of or are based upon: (i) any inaccuracy in or breach of a representation or warranty contained herein by the Wholesaler, any breach of a covenant or agreement contained herein of the Wholesaler, or any failure by the Wholesaler to comply with state or federal securities laws applicable to the Offering; and (cii) any additional information about such Holder unauthorized use of sales materials or use of unauthorized verbal representations concerning the plan of distribution (other than for an underwritten offering) required Shares by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havethe Wholesaler.
(c) Any Person entitled Promptly after receipt by an indemnified party of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to indemnification pursuant be made against the indemnifying party, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under this Agreement shall give prompt written notice Section 8 unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any claim with respect to which it seeks indemnification. Notwithstanding the previous sentenceevent, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its from any obligations under to any indemnified party other than the indemnification obligation provided in this Agreement, 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 pursuant to this Agreement is brought against an indemnified party, the The indemnifying party shall be entitled to participate in and shall have appoint counsel of 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, indemnifying party’s choice at the indemnifying party’s expense, the defense of any such claim or action, with counsel reasonably acceptable expense to represent the indemnified party. Notwithstanding the previous sentence, party in any indemnified party shall continue to be entitled to participate action for which indemnification is sought (in the defense of such claim or action, with counsel of its own choice, but which case the indemnifying party shall not thereafter be obligated to reimburse responsible for the fees and expenses of any separate counsel retained by the indemnified party for any or parties except as set forth below); provided, however, that such counsel shall be subject to approval by the indemnified party, not to be unreasonably withheld or delayed. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ and select separate counsel (including local counsel), subject to approval by the indemnifying party not to be unreasonably withheld or delayed, and the indemnifying party shall bear the reasonable 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 action within a reasonable time after receipt of notice of such claim or action, separate counsel if (C) having assumed the defense of such claim or 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, (Di) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest interest, (ii) the actual or (E) potential defendants in, or targets of, any such action include both the indemnified party has and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal or equitable defenses available to it and/or other any other indemnified party parties which are different from or additional to those available to the indemnifying party. Subject to , (iii) the foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 employed counsel for the right to settle a claim or action for which any indemnified party is entitled (subject to indemnification pursuant approval by the indemnified party not to this Agreement without be unreasonably withheld or delayed) to represent the consent indemnified party within a reasonable time after notice of the indemnified party, The institution of such action or (iv) the indemnifying party shall not authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party may settle or compromise or consent to the entry of any judgment or enter into or agree with respect to any settlement relating to such claim pending or action threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder but may not do so without the prior written consent of the indemnified parties, unless such judgment settlement, compromise or settlement does not impose any admission consent includes an unconditional release of wrongdoing or ongoing obligations on any each indemnified party and includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 arising out of such claim claim, action, suit or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)proceeding.
(d) If the right to indemnification provided for in this Section 11 8 would by its terms be available to a person hereunder, but is held to be unavailable by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of for any loss, claim, action, damage, liability or expense referred to in this Section 11reason, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such lossLosses and expenses in respect thereof, claimas incurred, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Dealer Manager and the indemnifying partyWholesaler, as applicable, in connection with the statements, omissions or other circumstances which resulted in such Losses or expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying partyDealer Manager and the Wholesaler, on the one hand, and of the indemnified party, on the other handas applicable, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, and access to information and opportunity to correct or prevent such statement, omission or violationinformation. The parties agree It is understood that it would not be just and equitable if contribution pursuant to this Agreement Section 8(d) were determined by pro rata allocation or by any other method or of allocation that which does not take into account of the equitable considerations referred to above in this Section 11(d8(d). In no event Notwithstanding the provisions of this Section 8(d), the Dealer Manager shall the amount which a Holder of Registrable Securities may not be obligated required to contribute pursuant to this Section 11(d) exceed an any amount equal to in excess of the net proceeds (after deducting Selling Expenses) actually received total price of the Offering Shares sold by such Holder in the sale of Registrable Securities that gives rise to such obligation to contributeit. No indemnified party person 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 person who was not guilty of such fraudulent misrepresentation.
(e) The provisions . For purposes of this Section 11 8(d), each Other Indemnified Party affiliate of the Dealer Manager shall remain in full force have the same rights to contribution as the Dealer Manager and effect regardless each Other Indemnified Party of any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party and the Wholesaler shall survive have the Transfer of any Registrable Securities by any Holdersame rights to contribution as the Wholesaler.
Appears in 2 contracts
Sources: Equity Purchase Agreement (ARC Properties Operating Partnership, L.P.), Equity Purchase Agreement (RCS Capital Corp)
Indemnification; Contribution. (a) The In the event of any registration of any of the Registrable Securities under the Securities Act pursuant to this Agreement, the Company shall, to the fullest extent permitted by law, will indemnify and hold harmless each Holder the seller of such Registrable Securities, any Person and its directors and officers, each underwriter of such Registrable Securities, and each other person, if any, who is controls such seller or might be deemed to be a “controlling person” of the Company or any of its subsidiaries underwriter 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 Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expensesdamages or liabilities, joint or several, to which such Covered Person seller, underwriter or controlling person may become subject under the Securities Act, the Exchange Act, state securities or Blue Sky laws or otherwise, in so far as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any state blue sky securities lawsuntrue statement or alleged untrue statement of any material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act, any equivalent non-U.S. preliminary prospectus or final prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, and any document incorporated therein by reference or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Company will reimburse such seller, underwriter and each such controlling person for any legal or any other expenses reasonably incurred by such seller, underwriter or controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such Registration Statement, preliminary prospectus or prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by or on behalf of such seller, underwriter or controlling person specifically for use in the preparation thereof. In the event of any registration of any of the Registrable Securities under the Securities Act pursuant to this Agreement, each seller of Registrable Securities, severally and not jointly, will indemnify and hold harmless the Company, each of its directors, and officers and each underwriter (if any) and each person, if any, who controls the Company or any such underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages or liabilities, joint or several, to which the Company, such directors and officers, underwriters or controlling person may become subject under the Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise, insofar as such losses, claims, actions, damages, damages or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act, any preliminary prospectus or incorporated by reference final prospectus contained in any the Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to the Registration Statement, or any document incorporated by reference in the same, (ii) arise out of or are based upon any omission or alleged omission of to state a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements therein not misleading, if the statement or omission was made in the same not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 reliance 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written with information prepared and furnished in writing to the Company by or on behalf of such Covered Person expressly for use in such Registration Statementseller, Prospectus, preliminary Prospectus or free writing prospectus. 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 specifically for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any preparation of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectusprospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to supplement; provided, however, that the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by obligations of such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) seller hereunder shall be individual and several, not joint and several, for each participating Holder and shall be proportional limited to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by to such Holder in the sale of seller from Registrable Securities sold as contemplated herein. Each party entitled to which such Registration Statement or Prospectus relates. The indemnity agreement contained in Indemnification under this Section 11(b5 (the "Indemnified Party") shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim with respect as to which it seeks indemnification. Notwithstanding the previous sentenceindemnity may be sought, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have permit the right, exercisable by giving written notice Indemnifying Party 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, assume the defense of any such claim or actionany litigation resulting therefrom; providing, with that counsel reasonably acceptable to for the indemnified party. Notwithstanding the previous sentenceIndemnifying Party, any indemnified party who shall continue to be entitled to participate in conduct the defense of such claim or actionlitigation, with counsel of its own choice, but shall be approved by the indemnifying party Indemnified Party (whose approval shall not be obligated unreasonably withheld); and, provided, further, that the failure of any Indemnified Party to reimburse give notice as provided herein shall not relieve the indemnified party for any feesIndemnifying Party of its obligations under this Agreement. The Indemnified Party may participate in such defense at such party's expense; provided, costs and expenses subsequently incurred however, that the Indemnifying Party shall pay such expense if representation of such Indemnified Party by the indemnified counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in connection with such defense unless (A) the indemnifying party has agreed proceeding. No Indemnifying Party, in writing to pay such fees, costs and expenses, (B) the indemnifying party has failed to assume the defense of any 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 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 (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 foregoing sentence, no indemnifying party litigation shall, in connection except with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified partyeach Indemnified Party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, Indemnified Party of a full and final release from all liability in respect of such claim or action. The indemnifying party litigation, and no Indemnified Party shall not be liable under this Agreement for any amount paid or payable or incurred pursuant consent to or in connection with entry of any judgment entered or settlement effected with settle such claim or litigation without the prior written consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) Indemnifying Party. If the indemnification provided for in this Section 11 herein is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, insufficient to hold harmless an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11Indemnified Party hereunder, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, each Indemnifying Party shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossthe losses, claimclaims, action, damage, liability damages or expense liabilities (or actions or proceedings in respect thereof) referred to herein in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnifying Party on the one hand and the indemnifying partyIndemnified Party on the other in connection with the statements, as well as any other relevant equitable considerationsomissions, actions, or inactions which resulted in such losses, claims, damages or liabilities. The relative fault of the indemnifying party, on Indemnifying Party and the one hand, and of the indemnified party, on the other hand, Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Indemnifying Party or by the indemnified partyIndemnified Party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with by any registration of securitiessuch party, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ ' relative intent, knowledge, access to information information, and opportunity to correct or prevent such statement, omission omission, action, or violationinaction. 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. Promptly after receipt by an Indemnified Party hereunder of written notice of the commencement of any action, suit, proceeding, investigation, or threat thereof with respect to which a claim for contribution may be made against an Indemnifying Party hereunder, such Indemnified Party shall, if a claim for contribution in respect thereto is to be made against an Indemnifying Party, give written notice to the Indemnifying Party of the commencement thereof (if the notice specified herein has not been given with respect to such action); provided, however, that the failure to so notify the Indemnifying Party shall not relieve it from any obligation to provide contribution which it may have to any Indemnified Party hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to give notice. The parties hereto agree that it would not be just and equitable if contribution pursuant hereto were determined by pro rata allocation or by any other method of allocation which does not take account of equitable considerations referred to herein. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Agreement Section 5 were determined by pro rata allocation or by any other method or of allocation that does not take into account the equitable considerations referred to in this Section 11(d)the immediately preceding paragraph. In no event shall Notwithstanding the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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) The provisions of this Section 11 5, contribution by any seller of Registerable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registerable Securities pursuant to such Registration Statement. If indemnification is available hereunder, the Indemnifying Parties shall indemnify each Indemnified Party to the fullest extent provided herein, without regard to the relative fault of said Indemnifying Party or Indemnified Party or any other equitable consideration provided for herein. The provisions hereof shall be in addition to any other rights to indemnification or contribution which any Indemnified Party may have pursuant to law or contract, shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party or any officerIndemnified Party, director or controlling person of such indemnified party and shall survive the Transfer transfer of any Registrable Securities securities by any Holdersuch party.
Appears in 2 contracts
Sources: Registration Rights Agreement (Medical Media Television, Inc.), Registration Rights Agreement (Medical Media Television, Inc.)
Indemnification; Contribution. (a) The Company shall, to the fullest extent permitted by law, will indemnify and hold harmless each Holder 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, holder and each other Personaffiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, if any, who acts on behalf of or controls under any such Holder Blue Sky Law or Controlling Person (each of the foregoing, a “Covered Person”) regulation against any losses, claims, actions, damages, liabilities and expensesor liabilities, joint or several, to which such Covered Person holder may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statementpreliminary prospectus, Prospectusregistration statement, preliminary Prospectusprospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto, or any document incorporated by reference in arise out of or are based upon the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company misleading, and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall will reimburse each Covered Person such holder and affiliate for any legal or other expenses reasonably incurred by such Covered Person holder in connection with investigating, investigating or defending or settling any such lossaction or claim regardless of the negligence of any such holder or affiliate; provided, claimhowever, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable in any such case to the extent that any such loss, claim, action, damage, or liability or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omission, omission made or incorporated by reference in any such Registration Statementpreliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any such amendment or supplement to or any document incorporated by reference in the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by any such Covered Person holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder Each holder of Registrable Securities is participating, each such Holder shall furnish Common Stock registered pursuant to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, this Agreement will indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person Company against any losses, claims, actions, damages, or liabilities and expenses, joint or several, to which they or any of them the Company may become subject subject, under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement thereto, or arise out of or supplement to are based upon the same or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butin each case to the extent, in the case of each of clauses (i) and (ii), but only to the extent extent, that such untrue statement or alleged untrue statement, statement or omission or alleged omission, is omission was made in such Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havetherein.
(c) Any Person entitled Promptly after receipt by an indemnified party under Sections 8(a) or (b) above of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to indemnification pursuant to this Agreement shall give prompt written notice to be made against the indemnifying party under either such subsection, notify the indemnifying party in writing of any claim with respect the commencement thereof; but the omission so to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so 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 its obligations under this Agreement, 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 pursuant to this Agreement is brought against an indemnified party, commencement thereof 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, assume the defense of any such claim or action, with counsel reasonably acceptable thereof by notice in writing to the indemnified party. Notwithstanding After notice from the previous sentence, any indemnifying party to such indemnified party shall continue of its election to be entitled to participate in assume the defense of such claim or actionthereof, with counsel of its own choice, but the indemnifying party shall not be obligated liable to reimburse the such indemnified party under either of such subsections for any feeslegal expenses of other counsel or any other expense, costs and expenses in each case subsequently incurred by the such indemnified party party, in connection with such the defense unless (A) thereof other than reasonable costs of investigation incurred prior to the assumption by the indemnifying party has agreed party, unless such expenses have been specifically authorized in writing to pay such feesby the indemnifying party, costs and expenses, (B) the indemnifying party has failed to assume the defense and 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 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 action, indemnified party and the indemnifying party fails by the same counsel would be inappropriate due to employ actual or potential differing interests between them, in each of which cases the fees of counsel reasonably acceptable to for the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen will be paid by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 8 is held by a court of competent jurisdiction unavailable or insufficient to be unavailable to, or unenforceable by, hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or action in respect thereof) referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company and the indemnifying partyholder or holders from this Agreement and from the offering of the shares of Common Stock. If If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, the 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 the such relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Company and the indemnifying partyholders in connection with the statement or omissions that resulted in such losses, claims, damages, or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Agreement Section 8(d) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method or of allocation that does not take into account the equitable considerations referred to above in this subsection (e). Except as provided in Section 8(c), the amount paid or payable by an indemnified party as a result of the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above in this Section 11(d). In no event 8(d) shall the amount which a Holder of Registrable Securities may be obligated deemed to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received include any legal or other expenses reasonably incurred by such Holder indemnified party in the sale of Registrable Securities that gives rise to connection with investigation or defending any such obligation to contributeaction or claim. No indemnified party person 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 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 provisions obligations of the Company under this Section 11 8 shall remain be in full force and effect regardless of addition to any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party liability that the Company may otherwise have and shall survive extend, upon the Transfer 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 8 shall be in addition to any Registrable Securities by any Holderliability 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 2 contracts
Sources: Warrant Agreement (Lorecom Technologies Inc), Warrant Agreement (Horizon Pharmacies Inc)
Indemnification; Contribution. (a) The Company shall, agrees to the fullest extent permitted by law, indemnify and hold harmless each Holder 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 membersAffiliates, directors, officers, trustees, managersemployees, members, employees, agents, Affiliates managers and shareholders, agents of each such Holder and each other Person, if any, Person who acts on behalf of or controls any such Holder within the meaning of either the Securities Act or Controlling Person (each of the foregoingExchange Act, a “Covered Person”) to the fullest extent permitted by applicable law, from and against any and all losses, claims, actions, damages, liabilities and expenses, joint or several, expenses to which such Covered Person they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities and expenses (or expenses actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or incorporated by reference in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined or in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment thereof or supplement to thereto, or any document incorporated by reference in arise out of or are based upon the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable misleading, and agrees to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall reimburse each Covered Person such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Covered Person them in connection with investigating, investigating or defending or settling any such loss, claim, actiondamage, damage liability or liability. Notwithstanding action (whether or not the previous sentenceindemnified party is a party to any proceeding); provided, however, that the Company shall will not be so liable in any such case to the extent that any such loss, claim, action, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement, statement or omission or alleged omission, omission made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same therein in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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) 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 such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or any officer, director or controlling person (ii) out of such indemnified party and shall survive the Transfer sales of any Registrable Securities by any Holder.made during a Suspension Period after notice is given pursuant to Section 2(e)(ii)
Appears in 2 contracts
Sources: Registration Rights Agreement (Select Energy Services, Inc.), Registration Rights Agreement (Select Energy Services, Inc.)
Indemnification; Contribution. (a) The Company shallagrees to indemnify, to the fullest extent permitted by applicable law, indemnify and hold harmless each Holder of Registrable Securities, any its officers, directors, employees, agents and Affiliates and each Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries that controls such Holder (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 Holder or Controlling Person (each of the foregoing, a “Covered Person”Act) against any all losses, claims, actions, damages, liabilities and expenses (including attorneys’ fees and expenses, joint or severaland expenses of investigation), to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) resulting from any untrue or alleged untrue statement of a material fact contained in any registration statement, prospectus 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 to Rule 405) or any amendment thereof or supplement to or any document incorporated by reference in the samethereto, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or Act, the Exchange Act, any other similar federal or applicable state securities laws law (or any rule or regulation promulgated under such federal or any applicable state securities laws applicable to law), except insofar as the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, the Company shall not be so liable same are contained 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 information furnished in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person Holder expressly for use in therein or by such Registration Statement, Prospectus, preliminary Prospectus Holder’s failure to deliver a copy of the registration statement or free writing prospectus. This indemnity shall be in addition prospectus or any amendments or supplements thereto (to any liability the extent such delivery is required) after the Company may otherwise havehas furnished such Holder with a sufficient number of copies of the same. In connection with an Underwritten Offering, the Company shall indemnify the underwriters, their officers and directors and each Person who controls 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 in which a Holder of Registrable Securities is participating, each such Holder shall furnish to To the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by applicable law, each Holder shall indemnify and hold harmless the Company, its directors and directors, officers, employees, agents and any Affiliates and each Person who is or might be deemed to be a Controlling Person that controls the Company (within the meaning of the Securities Act) against any losses, claims, actions, damages, liabilities and expenses (including attorneys’ fees and expenses, joint or several, to which they or any and expenses of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise investigation) arising out of or are based upon (i) resulting from any untrue or alleged untrue statement of a material fact contained in the Registration Statementregistration statement, Prospectus, prospectus or preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of thereof or supplement to the same thereto or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, but, in the case of each of clauses (i) and (ii), but only to the extent that such untrue statement or alleged untrue statement, omission is contained in any information or omission or alleged omission, is made affidavit so furnished in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder shall reimburse Holder; provided that 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and severalindividual, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal limited to the net amount of proceeds (after deducting Selling Expenses) actually received by such Holder in from the sale of Registrable Securities pursuant to which such Registration Statement or Prospectus relatesregistration statement. The indemnity agreement contained in this Section 11(b) In connection with an Underwritten Offering, each Holder shall not apply provide customary indemnification to amounts paid in settlement of any the underwriters, their officers and directors and each Person who controls such loss, claim, damage, liability, action or proceeding if such settlement is effected without underwriters (within the consent of such Holder. The Company and the Holders meaning of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveAct).
(c) Any Person entitled to indemnification pursuant to this Agreement hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding indemnification (provided that the previous sentence, any failure or delay to so notify the indemnifying party give prompt notice shall not relieve the indemnifying party of its obligations under this Agreement, except impair any Person’s right to indemnification hereunder to the extent that such failure has not materially prejudiced the indemnifying party is actually party) and materially prejudiced by reason of (ii) permit such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have assume the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party defense of such claim or action, to assume, at the indemnifying party’s expense, the defense of any such claim or action, with counsel reasonably acceptable satisfactory to the indemnified party. Notwithstanding the previous indemnifying party’s rights in the prior sentence, any the indemnified party shall continue have the right to be entitled to participate in the defense of such claim or action, with counsel of employ its own choicecounsel (and one local counsel), but and the indemnifying party shall not be obligated to reimburse bear the indemnified party for any reasonable 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 action within a reasonable time after receipt of notice of such claim or action, separate counsel if (C) having assumed the defense of such claim or 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, (Di) the use of counsel chosen by the indemnifying party to represent the indemnified party would in the reasonable judgment of the indemnified party present such counsel with a conflict of interest interest; (ii) the actual or (E) potential defendants in, or targets of, any such action include both the indemnified party has reasonably concluded that there may be one or more and the indemnifying party and, based on advice of counsel to the indemnified party, the indemnified party shall have legal or equitable defenses available to it and/or other any other indemnified party which parties that are different from inconsistent with or additional in addition to those available to the indemnifying party. Subject ; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the foregoing sentence, no indemnified party to represent the indemnified party within a reasonable time after written notice of the institution of such action has been delivered to the indemnifying party; or (iv) the indemnifying party shall have requested the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. The If such defense is assumed, the indemnifying party shall not have be subject to any liability for any settlement made by the right to settle a indemnified party without its consent (but such consent shall not be unreasonably withheld). No indemnifying party, in the defense of any such claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without litigation, shall, except with the consent of the each indemnified party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement compromise that does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified partytherein, in form and substance reasonably satisfactory 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 under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)litigation.
(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, director or controlling Person of such indemnified party and shall survive the Transfer of Registrable Securities.
(e) If the indemnification provided for in required by this Section 11 6 from the indemnifying party is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an indemnified party hereunder in respect of any losslosses, claimclaims, actiondamages, damage, liability liabilities or expense expenses referred to in this Section 11, then the applicable 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party under this Agreementparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability liabilities or expense expenses in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, fault of the indemnifying party shall contribute to such amount and indemnified parties in connection with the actions which resulted in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying partylosses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of the such indemnifying party, on the one hand, party and of the indemnified party, on the other hand, parties shall be determined by reference to, among other things, whether the untrue any violation referred to in this Section 6 has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party or by the indemnified partyparties, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, 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 6(a) and Section 6(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 Agreement Section 6(e) were determined by a pro rata allocation or by any other method or of allocation that which does not take into account the equitable considerations referred to in this Section 11(d6(e)(i). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party Person 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 (IMH Financial Corp), Registration Rights Agreement (IMH Financial Corp)
Indemnification; Contribution. (a) The In the event of any registration of any securities of the Company shallunder the Securities Act, to the fullest extent permitted by lawCompany will, and hereby does, indemnify and hold harmless each Holder in the case of any registration statement filed pursuant to Section 2 or 3, the holder of any Registrable SecuritiesSecurities covered by such registration statement, 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 directors and indirect general and limited partners, advisory board members, directors, officers, trusteeseach officer and director of each underwriter, managers, members, employees, agents, Affiliates and shareholders, each other person who participates as an underwriter in the offering or sale of such securities and each other Personperson, if any, who acts on behalf of controls such holder or controls any such Holder or Controlling Person (each underwriter within the meaning of the foregoing, a “Covered Person”) Securities Act against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person holder or any such director or officer or participating or controlling person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings or investigations in respect thereof) arise out of or are based upon (ix) any untrue statement or alleged untrue statement of a any material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 registration statement under which such securities were registered under the Securities Act Act, any preliminary prospectus (unless, with respect to the indemnification of the officers and directors of each underwriter and each other person participating as an underwriter, any such statement is corrected in a subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or any successor rule to Rule 405) summary prospectus included therein, or any amendment or supplement to thereto, or any document incorporated by reference in the sametherein, or (iiy) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iiiz) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to laws, and the Company will reimburse such holder and relating to any action or inaction required of the Company in connection with any registration of securities. In additioneach such director, the Company shall reimburse each Covered Person officer, participating person and controlling person for any legal or any other expenses reasonably incurred by such Covered Person them in connection with investigating, investigating or defending or settling any such loss, claim, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall not be so liable to any seller, director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, action, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omissionomission 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 in an instrument executed by or under the direction of such seller, director, officer, participating person or controlling person for use in the preparation thereof, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or other document. Such indemnity shall remain in full force and effect regardless of any investigation made by or incorporated on behalf of such seller or any such director, officer, participating person or controlling person and shall survive the transfer of such securities by reference such seller. The Company shall agree to provide for contribution relating to such indemnity as shall be reasonably requested by any seller of Registrable Securities or the underwriters.
(b) The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(a), that the Company shall have received an undertaking satisfactory to it from the prospective sellers of such Registration Statementsecurities and their underwriters, Prospectusto indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 6) the Company, each director of the Company, each officer of the Company who shall sign such registration statement and each other person, if any, who controls the Company within the meaning of the Securities Act, with respect to any statement in or omission from such registration statement, any preliminary Prospectusprospectus, free writing final prospectus or summary prospectus included therein, or any amendment or supplement to thereto, but only if such statement or any document incorporated by reference in the same omission was made in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company through an instrument duly executed by such Covered Person expressly sellers or their underwriters specifically stating that it is for use in the preparation of such Registration Statement, Prospectusregistration statement, preliminary Prospectus prospectus, final prospectus, summary prospectus, amendment or free writing prospectussupplement. This Such indemnity shall be remain in addition to full force and effect regardless of any liability investigation made by or on behalf of the Company may otherwise have.
(b) In connection with or any registration in which a Holder such director, officer or controlling person and shall survive the transfer of Registrable Securities is participating, each such Holder shall furnish securities by such sellers. Anything contained herein to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Actcontrary notwithstanding, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise out maximum liability 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, each prospective seller in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) prospective seller shall be individual and several, not joint and several, for each participating Holder and shall be proportional limited to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in prospective seller from the sale of such Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveSecurities.
(c) Any Person entitled Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to indemnification pursuant in the preceding subdivisions of this Section 6, such indemnified party will, if a claim in respect thereof is to this Agreement shall be made against an indemnifying party, give prompt written notice to the indemnifying party latter of the commencement of such action; provided, however, that the failure of any claim with respect indemnified party to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subdivisions of this Agreement, Section 6 except to the extent that the indemnifying party is actually party's rights are prejudiced, or liabilities and materially prejudiced by reason obligations under this Section 6 are increased, as a result of such failure or delayto give notice. In case a claim or an any such action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have to assume the rightdefense thereof, exercisable by giving written notice jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party as promptly as practicable after receipt of written party. After notice from the indemnifying party to such indemnified party of such claim or action, its election so to assume, at the indemnifying party’s expense, assume the defense of any such claim or actionthereof, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 liable to reimburse the such indemnified party for any fees, costs and legal or other expenses subsequently incurred by the indemnified party in connection with such the defense thereof unless (Ai) the indemnifying party has agreed in writing shall have failed to pay such fees, costs and expensesretain counsel for the indemnified party as aforesaid, (Bii) the indemnifying party has failed to 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 action, the indemnifying party fails to employ counsel reasonably acceptable to and the indemnified party or shall have mutually agreed to pursue the defense retention of such claim counsel or action in a reasonably vigorous manner, (Diii) representation of such indemnified party by the use of counsel chosen retained by the indemnifying party would be inappropriate due to represent actual or potential differing interests between such indemnified party and any other person represented by such counsel in such proceeding or the indemnified party would present such counsel with a conflict of interest or (E) the indemnified party has shall have 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs and expenses of more than one firm of attorneys (in addition to any local counsel) for all indemnified parties. The which case the indemnifying party shall not have the right to settle a claim or direct the defense of such action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent on behalf of the indemnified party, The ). No indemnifying party shall not will consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, party of a full and final release from all liability in respect of to such claim or actionlitigation. The indemnifying party shall not be liable under this Agreement for any amount paid or payable or incurred pursuant to or in connection with settlement of any judgment entered or settlement proceeding effected with without the written consent of an indemnified party unless the such indemnifying party has also consented to such judgment or settlement (such which consent shall not to be unreasonably withheld), conditioned but if settled with such consent or delayed).
(d) If if there be a final judgment for the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable lawplaintiff, the indemnifying party shall contribute agrees to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnify each indemnified party from and the indemnifying party, as well as against any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined loss or liability by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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 reason of such fraudulent misrepresentationsettlement or judgment.
(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: Purchase Agreement (Bianco Joseph J), Purchase Agreement (Alliance Entertainment Corp)
Indemnification; Contribution. (a) The Company shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to time, indemnify, defend and hold harmless, to the fullest full extent permitted by law, indemnify and hold harmless each Holder holder of Registrable Securities, any the partners, members, officers, directors, agents and employees of each of them, each Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries controls each such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Person, a “Controlling Person”Act), their respective direct and indirect general and limited the partners, advisory board members, officers, directors, officers, trustees, managers, members, employees, agents, Affiliates agents and shareholders, employees of each such controlling person and each other Person, if any, who acts on behalf of any financial or controls any such Holder or Controlling Person investment adviser (each of the foregoingeach, a “Covered Person”) ), to the fullest extent lawful, from and against any and all losses, claims, actions, damages, liabilities liabilities, actions or proceedings (whether commenced or threatened), costs (including, without limitation, costs of preparation and expensesattorneys’ fees) and expenses (including expenses of investigation) (collectively, joint or several“Losses”), to which such Covered Person may become subject under the Securities Actas incurred, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) any untrue 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 or form of prospectus or in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to supplements thereto or in any document incorporated by reference in the samepreliminary prospectus, (ii) or arising out of or based upon any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in therein not misleading, except to the extent that the same not misleading arise out of or are based upon information furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (iiiii) any violation or alleged violation by the Company of the Securities Act any federal, state or any other similar federal or state securities laws or any common law rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action required of or inaction required of by the Company in connection with any registration of securities. In additionsuch registration; provided, 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. Notwithstanding the previous sentence, that the Company shall not be so liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such case underwriters within the meaning of the Securities Act to the extent that any loss, claim, action, damage, liability or expense arises such Losses arise out of or is are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statementstatement or such omission or alleged omission and (C) the Company has complied with its obligations under Section 5D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any Registration Statement provided for under this Section 5 is made through underwriters, (x) no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence and (y) the Company agrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 5F with respect to the indemnification of the holders of Registrable Securities; provided, that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission, made omission at or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished prior to the Company by written confirmation of the sale of Registrable Securities to such Covered Person expressly for use if such statement or omission was corrected in such Registration Statement, Prospectus, preliminary Prospectus amended or free writing supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In connection with any registration Registration Statement in which a Holder holder of Registrable Securities is participating, each such Holder holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shallprospectus and agrees, severally and not jointly, to indemnify, defend and hold harmless to the fullest full extent permitted by law, indemnify and hold harmless the Company, its directors and directors, officers, employees, agents and any employees, each Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any controls the Company (within the meaning of them may become subject under Section 15 of the Securities Act, Act and Section 20 of the Exchange Act), any state blue sky securities lawsand the partners, any equivalent non-U.S. securities laws members, directors, officers, agents or otherwiseemployees of such controlling persons, insofar as such losses, claims, actions, damages, liabilities or expenses arise from and against all Losses arising out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the any Registration Statement, Prospectusprospectus, preliminary Prospectusor form of prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment arising out of or supplement to the same or (ii) based upon any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butto the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, that such holder of Registrable Securities shall not be liable in any such case of each of clauses (i) and (ii), only to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such untrue statement Registration Statement or alleged untrue statement, prospectus or omission amendment or alleged omission, is made supplement thereto information expressly for use in such Registration Statement, Prospectus, preliminary Prospectus, free writing Statement or prospectus or any amendment or supplement to the same in reliance uponthereto which corrected or made not misleading, and in conformity with, written information prepared and previously furnished to the Company, and the Company by failed to include such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectusinformation therein. In addition, such Holder no event shall reimburse the Company, its directors liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(btherewith) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in holder upon the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge giving rise to such indemnification obligation. Such indemnity shall remain in full force and agree that, unless otherwise expressly agreed to in writing effect regardless of any investigation made by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address on behalf of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveindemnified party.
(c) Any If any Person shall be entitled to indemnification pursuant to this Agreement indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall give prompt written notice to the indemnifying party or parties from which such indemnity is sought (the “Indemnifying Parties”) of the commencement of any claim action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which it such Indemnified Party seeks indemnification. Notwithstanding indemnification or contribution pursuant hereto; provided, that the previous sentence, any failure or delay to so notify the indemnifying party Indemnifying Parties shall not relieve the indemnifying party of its obligations under this Agreement, Indemnifying Parties from any obligation or liability except to the extent that the indemnifying party is actually and materially Indemnifying Parties have been prejudiced by reason of such failure or delayfailure. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and The Indemnifying Parties shall have the right, exercisable by giving written notice to an Indemnified Party promptly after the indemnified party as promptly as practicable after receipt of written notice from such indemnified party Indemnified Party of such claim or actionProceeding, to assume, at the indemnifying party’s Indemnifying Parties’ expense, the defense of any such claim or actionProceeding, with counsel reasonably acceptable satisfactory to such Indemnified Party; provided, that an Indemnified Party (if more than one such Indemnified Party is named in any Proceeding) shall have the indemnified party. Notwithstanding the previous sentence, right to employ separate counsel in any indemnified party shall continue to be entitled such Proceeding and to participate in the defense of such claim or action, with counsel of its own choicethereof, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs fees and expenses subsequently incurred by of such counsel shall be at the indemnified party in connection with expense of such defense unless Indemnified Party or parties unless: (Ai) the indemnifying party has agreed in writing Indemnifying Parties agree to pay such fees, costs fees and expenses, ; (Bii) the indemnifying party has failed Indemnifying Parties fail promptly to assume the defense of such claim Proceeding or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails fail to employ counsel reasonably acceptable satisfactory to the indemnified party such Indemnified Party or to pursue the defense of such claim parties; or action in a reasonably vigorous manner, (Diii) the use named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party or parties and the Indemnifying Parties or an Affiliate of counsel chosen by the indemnifying party to represent the indemnified party would present Indemnifying Parties or such counsel with a conflict of interest or (E) the indemnified party has reasonably concluded that Indemnified Parties, and there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which such Indemnified Party that are different from or additional to those available to the indemnifying party. Subject Indemnifying Parties, in which case, if such Indemnified Party notifies the Indemnifying Parties in writing that it elects to employ separate counsel at the foregoing sentenceexpense of the Indemnifying Parties; the Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, no indemnifying party shallit being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one claim or action such Proceeding or separate but substantially similar or related actions Proceedings in the same jurisdiction jurisdiction, arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees, costs fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all indemnified partiessuch Indemnified Party. Whether or not such defense is assumed by the Indemnifying Parties, such Indemnifying Parties or Indemnified Party shall not be subject to any liability for any settlement made without its or their consent (but such consent shall not be unreasonably withheld). The indemnifying party shall not have the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party Indemnifying Parties shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim which (x) provides for other than monetary damages without the consent of the Indemnified Party (which consent shall not be unreasonably withheld or action unless such judgment delayed) or settlement (y) does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified partyIndemnified Party of a release, in form and substance reasonably satisfactory to such indemnified partythe Indemnified Party, of a full and final release from all liability in respect of such claim or action. The indemnifying party shall not Proceeding for which such Indemnified Party would be liable under this Agreement for any amount paid or payable or incurred pursuant entitled to or in connection with any judgment entered or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)indemnification hereunder.
(d) If the indemnification provided for in this Section 11 5F is held by a court of competent jurisdiction unavailable to be unavailable to, an Indemnified Party or unenforceable by, an indemnified party is insufficient to hold such Indemnified Party harmless for any Losses in respect of any loss, claim, action, damage, liability or expense referred to in which this Section 115F would otherwise apply by its terms, then the each applicable indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall have an obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossLosses, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnifying Party, on the one hand, and such Indemnified Party, on the indemnifying partyother hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the indemnifying partysuch Indemnifying Party, on the one hand, and of the indemnified partyIndemnified Party, on the other hand, shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the indemnifying party by, such Indemnifying Party or by the indemnified partyIndemnified Party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such statementaction, omission statement or violationomission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 5F(a) or 5F(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Agreement Section 5F(d) were determined by pro rata allocation or by any other method or of allocation that does not take into account of the equitable considerations referred to in this Section 11(d5F(d). In no event shall Notwithstanding the amount which provisions of this Section 5F(d), an Indemnifying Party that is a Holder holder of Registrable Securities may shall not be obligated required to contribute pursuant to this Section 11(d) exceed an any amount equal to in excess of the amount by which the net proceeds (after deducting Selling Expenses) actually received by such Holder in Indemnifying Party exceeds the sale amount of Registrable Securities any damages that gives rise such Indemnifying Party has otherwise been required to pay by reasons of such obligation to contributeuntrue or alleged untrue statement or omission or alleged omission. No indemnified party person 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 Each Securityholder and the Company agree that such Person shall not permit any amendment to the Certificate of Incorporation or the by-laws of the Company that would reduce the scope of the indemnification or limitation of liability provisions of this Section 11 shall 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 Holdercontained therein.
Appears in 1 contract
Sources: Securityholders Agreement (Universal Hospital Services Inc)
Indemnification; Contribution. (a) The Company shall, to To the fullest extent permitted by law, the Company will indemnify the Investor, each of its officers, directors, members and hold harmless partners, and each Holder of Registrable Securitiesperson controlling such Investor, any Person who is with respect to which registration, qualification or might be deemed compliance has been effected pursuant to be a “this Agreement, each director and controlling person” person of the Company or any of its subsidiaries within the meaning of Section 15 and each officer of the Securities Act or Section 20 of Company who signed 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 shareholdersregistration statement, and each other Personunderwriter, if any, and each person who acts on behalf of or controls any underwriter, against all claims, losses, damages and liabilities (or actions, proceedings or settlements, if such Holder or Controlling Person (each settlements are effected with the written consent of the foregoingCompany, a “Covered Person”in respect thereof) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any prospectus, offering circular or incorporated by reference in other document (including any Registration Statementrelated registration statement, Prospectusnotification of the like) incident to any such registration, preliminary Prospectusqualification or compliance, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus sated therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws the Exchange Act or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration such registration, qualification or compliance, and will reimburse the Investor, each of securities. In additionits officers, the Company shall reimburse directors, members and partners, and each Covered Person person controlling such Investor, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by such Covered Person in connection with investigating, investigating and defending or settling any such claim, loss, claimdamage, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall will not be so liable in any such case to the extent that any loss, such claim, actionloss, damage, liability or expense arises out of or is based upon on any such untrue statement or alleged untrue omission made in such registration statement, prospectus, offering circular or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any other document incorporated by reference in the same in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Covered Person expressly Investor or underwriter and stated to be specifically for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to To the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, the Investor will indemnify and hold harmless the Company, its directors each director, officer and officerscontrolling person of the Company and each officer of the Company who signed the registration statement, employeesand each underwriter, agents if any, and each person who controls any Person who is or might be deemed to be a Controlling Person underwriter, against any all claims, losses, claims, damages and liabilities (or actions, damagesproceedings or settlements, liabilities and expensesif such settlements are effected with the written consent of the Investor, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise in respect thereof) arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any prospectus, offering circular or other document in which the Registration StatementInvestor's shares are included (including any related registration statement, Prospectusnotification of the like) incident to any such registration, preliminary Prospectusqualification or compliance, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein not misleading in the same not misleading, but, in the each case of each of clauses (i) and (ii), only to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or alleged untrue statement, or omission or alleged omission, is made in such Registration Statementregistration statement, Prospectusprospectus, preliminary Prospectus, free writing prospectus offering circular or any amendment or supplement to the same other document in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder expressly Investor and stated to be specifically for use therein, or any violation by the Investor of the Securities Act or the Exchange Act or any rule or regulation thereunder applicable to the Investor and relating to action or inaction required of the Investor in connection with any such Registration Statementregistration, Prospectusqualification or compliance, preliminary Prospectus or free writing prospectus. In addition, such Holder shall and will reimburse the Company, each of its directors and officers, employeesdirectors, agents and each person controlling the Company, each such underwriter and each person who controls any Person who is or might be deemed to be a Controlling Person such underwriter, for any legal or and any other expenses reasonably incurred by them in connection with investigating, investigating and defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveproceeding.
(c) Any Person The party entitled to indemnification pursuant to under this Agreement Section 3 (the "Indemnified Party") shall give prompt written notice to the indemnifying party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim with respect as to which it seeks indemnification. Notwithstanding indemnity may be sought, and shall permit the previous sentenceIndemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, 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 or delay of any Indemnified Party to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party Indemnifying Party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of unless such failure or delayto notify materially adversely affects the Indemnifying Party's ability to defend such action. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified partyNo Indemnifying 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 such claim or actionlitigation, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection except with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified partyeach Indemnified Party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, Indemnified Party of a full and final release from all liability in respect of such claim or actionlitigation. The indemnifying party Each Indemnified Party shall not furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be liable under this Agreement for any amount paid or payable or incurred pursuant to or reasonably required in connection with any judgment entered or settlement effected with the consent defense of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 11 is held 3 shall for any reason be unenforceable by a court of competent jurisdiction to be unavailable toan Indemnified Party, or unenforceable by, an indemnified party although otherwise available in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11accordance with its terms, then the applicable indemnifying partyeach Indemnifying Party shall, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of the losses, claims, damages, liabilities or expenses with respect to which such lossIndemnified Party has claimed indemnification, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnified Party on the one hand and the indemnifying partyIndemnifying Party on the other in connection with the statement 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 the indemnifying partyan untrue statement, on the one handalleged untrue statement, and of the indemnified party, on the other handomission or alleged omission, shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party Indemnifying Party or the indemnified party. The relative fault shall also be determined by reference to the Indemnified Party, and such parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, alleged statement, omission or violationalleged omission. The parties Company and Investor agree that it would not be just and equitable if contribution pursuant hereto were to this Agreement were be determined by pro rata allocation or by any other method or of allocation that which does not take into account such equitable consideration. 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 or other expense reasonably incurred by such Indemnified Party in this Section 11(d)connection with investigating or defending against any action or claim which is the subject hereof. In no event case, however, shall Investor be responsible for a portion of the amount which a Holder contribution obligation in excess of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contributeInvestor of securities sold as contemplated herein. No indemnified party person guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(fSection11(f) of the Securities Act Act) shall be entitled to contribution from any Person person who was is not guilty of such fraudulent misrepresentation.
(e) The provisions of Anything to the contrary contained in this Section 11 3 notwithstanding, no Investor shall remain be liable for any indemnification or contribution in full force and effect regardless excess of the net proceeds received by it from any investigation made by or on behalf sale 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 HolderStock which has been registered hereunder.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Medi Ject Corp /Mn/)
Indemnification; Contribution. (a) The Company shallIn the event of any registration of any securities of the Purchaser under the U.S. Securities Act, to the fullest extent permitted by lawPurchaser will, and hereby does, indemnify and hold harmless each Holder in the case of Registrable Securitiesany registration statement filed pursuant to Section 2 or 3, any Person who is or might be deemed to be a “controlling person” of the Company or any of Vendor, 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 directors and indirect general and limited partners, advisory board members, directors, officers, trusteeseach officer and director of each underwriter, managers, members, employees, agents, Affiliates and shareholders, each other person who participates as an underwriter in the offering or sale of such securities and each other Personperson, if any, who acts on behalf of controls such holder or controls any such Holder or Controlling Person (each underwriter within the meaning of the foregoing, a “Covered Person”) U.S. Securities Act against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person holder or any such director or officer or participating or controlling person may become subject under the U.S. Securities Act, the U.S. Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings or investigations in respect thereof) arise out of or are based upon (ix) any untrue statement or alleged untrue statement of a any material fact contained in or incorporated by reference in any Registration Statementregistration statement under which such securities were registered under the U.S. Securities Act, Prospectus, any preliminary Prospectus, free writing prospectus (unless, with respect to the indemnification of the officers and directors of each underwriter and each other person participating as defined an underwriter, any such statement is corrected in Rule 405 under a subsequent prospectus and the Securities Act underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or any successor rule to Rule 405) summary prospectus included therein, or any amendment or supplement to thereto, or any document incorporated by reference in the sametherein, or (iiy) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iiiz) any violation or alleged violation by the Company Purchaser of any securities laws, and the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under Purchaser will reimburse the Vendor and each such federal or state securities laws applicable to the Company director, officer, participating person and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall reimburse each Covered Person controlling person for any legal or any other expenses reasonably incurred by such Covered Person them in connection with investigating, investigating or defending or settling any such loss, claim, actionliability, damage action or liability. Notwithstanding proceeding; provided, however, that the previous sentence, the Company Purchaser shall not be so liable to the Vendor or any such director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, action, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omissionomission 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 Purchaser in an instrument executed by or under the direction of the Vendor or such director, officer, participating person or controlling person for use in the preparation thereof, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or other document. Such indemnity shall remain in full force and effect regardless of any investigation made by or incorporated on behalf of the Vendor or any such director, officer, participating person or controlling person and shall survive the transfer of such securities by reference the Vendor. The Purchaser shall agree to provide for contribution relating to such indemnity as shall be reasonably requested by the Vendor or the underwriters.
(b) The Purchaser may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(a), that the Purchaser shall have received an undertaking satisfactory to it from the Vendor and its underwriters, to indemnify and hold harmless the Purchaser, each director of the Purchaser, each officer of the Purchaser who shall sign such Registration Statementregistration statement and each other person, Prospectusif any, who controls the Purchaser within the meaning of the U.S. Securities Act, with respect to any statement in or omission from such registration statement, any preliminary Prospectusprospectus, free writing final prospectus or summary prospectus included therein, or any amendment or supplement to thereto, but only if such statement or any document incorporated by reference in the same omission was made in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company Purchaser through an instrument duly executed by such Covered Person expressly the Vendor or its underwriters specifically stating that it is for use in the preparation of such Registration Statement, Prospectusregistration statement, preliminary Prospectus prospectus, final prospectus, summary prospectus, amendment or free writing prospectus. This indemnity supplement, provided that the obligations of the Vendor under any such provision shall be in addition limited 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale to it from sales of Registrable Securities to which such Registration Statement or Prospectus relatessold as contemplated herein. The Such indemnity agreement contained shall remain in this Section 11(b) shall not apply to amounts paid in settlement full force and effect regardless of any investigation made by or on behalf of the Purchaser or any such lossdirector, claim, damage, liability, action officer or proceeding if such settlement is effected without controlling person and shall survive the consent transfer of such Holder. The Company and securities by the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveVendor.
(c) Any Person entitled Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to indemnification pursuant in the preceding subdivisions of this Section 6, such indemnified party will, if a claim in respect thereof is to this Agreement shall be made against an indemnifying party, give prompt written notice to the indemnifying party latter of the commencement of such action; provided, however, that the failure of any claim with respect indemnified party to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subdivisions of this Agreement, Section 6 except to the extent that the indemnifying party is actually party's liabilities and materially prejudiced by reason obligations under this Section 6 are increased as a result of such failure or delayto give notice. In case a claim or an any such action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have to assume the rightdefense thereof, exercisable by giving written notice jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party as promptly as practicable after receipt of written party. After notice from the indemnifying party to such indemnified party of such claim or action, its election so to assume, at the indemnifying party’s expense, assume the defense of any such claim or actionthereof, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 liable to reimburse the such indemnified party for any fees, costs and legal or other expenses subsequently incurred by the indemnified party in connection with such the defense thereof unless (Ai) the indemnifying party has agreed in writing shall have failed to pay such fees, costs and expensesretain counsel for the indemnified party as aforesaid, (Bii) the indemnifying party has failed to 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 action, the indemnifying party fails to employ counsel reasonably acceptable to and the indemnified party or shall have mutually agreed to pursue the defense retention of such claim counsel or action in a reasonably vigorous manner, (Diii) representation of such indemnified party by the use of counsel chosen retained by the indemnifying party would be inappropriate due to represent actual or potential differing interests between such indemnified party and any other person represented by such counsel in such proceeding or the indemnified party would present such counsel with a conflict of interest or (E) the indemnified party has shall have 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs and expenses of more than one firm of attorneys (in addition to any local counsel) for all indemnified parties. The which case the indemnifying party shall not have the right to settle a claim or direct the defense of such action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent on behalf of the indemnified party, The . No indemnifying party shall not will consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, party of a full and final release from all liability in respect of to such claim or actionlitigation. The indemnifying party shall not be liable under this Agreement for any amount paid or payable or incurred pursuant to or in connection with settlement of any judgment entered or settlement proceeding effected with without the written consent of an indemnified party unless such indemnifying party, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party has also consented agrees to indemnify each indemnified party from and against any loss or liability by reason of such judgment settlement or settlement (such consent not to be unreasonably withheld, conditioned or delayed)judgment.
(d) If the indemnification provided for Indemnification similar to that specified in this Section 11 is held 6 (with appropriate modifications) shall be given by a court of competent jurisdiction the Purchaser and the Vendor with respect to be unavailable to, any required registration or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result other qualification of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as Registrable Securities under any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule regulation or regulation promulgated under such federal or state securities law applicable to governmental authority other than the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable U.S. Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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 misrepresentationAct.
(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
Sources: Asset Sale Agreement (Shannon International Resources Inc)
Indemnification; Contribution. (a) The Company shall, agrees to the fullest extent permitted by law, indemnify and hold harmless each Holder 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 membersAffiliates, directors, officers, trustees, managersemployees, members, employees, agents, Affiliates managers and shareholders, agents of each such Holder and each other Person, if any, Person who acts on behalf of or controls any such Holder within the meaning of either the Securities Act or Controlling Person (each of the foregoingExchange Act, a “Covered Person”) to the fullest extent permitted by applicable law, from and against any and all losses, claims, actions, damages, liabilities liabilities, expenses and expenses, joint or several, actions to which such Covered Person they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities and expenses (or expenses actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or incorporated by reference in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined or in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment thereof or supplement to thereto, or any document incorporated by reference in arise out of or are based upon the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein (in the same not misleading or (iii) any violation or alleged violation by the Company case of the Securities Act Disclosure Package, or any other similar federal preliminary, final or state securities laws summary Prospectus or Free Writing Prospectus included in any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required Registration Statement (in light of the Company in connection with any registration of securities. In additioncircumstances under which they were made) not misleading, the Company shall and agrees to reimburse each Covered Person such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Covered Person them in connection with investigating, investigating or defending or settling any such loss, claim, actiondamage, damage liability, expense or liability. Notwithstanding action (whether or not the previous sentenceindemnified party is a party to any proceeding); provided, however, that the Company shall will not be so liable in any such case to the extent that any such loss, claim, action, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement, statement or omission or alleged omission, omission made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same therein in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to on behalf of 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 specifically for use in connection with any such Registration Statement or Prospectus. Each Holder shallinclusion therein including, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Actwithout limitation, any state blue sky securities lawsnotice and questionnaire, 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission out of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale sales of Registrable Securities made during a Suspension Period after notice is given pursuant to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b1(f)(ii) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such documenthereof. This indemnity shall clause will be in addition to any liability which such Holder the Company may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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) 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. (a) The Company shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to time, indemnify, defend and hold harmless, to the fullest full extent permitted by lawLaw, indemnify and hold harmless each Holder holder of Registrable Securities, any the partners, members, officers, directors, agents and employees of each of them, each Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries controls each such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Person, a “Controlling Person”Act), their respective direct and indirect general and limited the partners, advisory board members, officers, directors, officers, trustees, managers, members, employees, agents, Affiliates agents and shareholders, employees of each such controlling person and each other Person, if any, who acts on behalf of any financial or controls any such Holder or Controlling Person investment adviser (each of the foregoingeach, a “Covered Person”) ), to the fullest extent lawful, from and against any and all losses, claims, actions, damages, liabilities liabilities, actions or proceedings (whether commenced or threatened), costs (including, without limitation, costs of preparation and expensesattorneys’ fees) and expenses (including expenses of investigation) (collectively, joint or several“Losses”), to which such Covered Person may become subject under the Securities Actas incurred, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) any untrue 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 or form of prospectus or in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to supplements thereto or in any document incorporated by reference in the samepreliminary prospectus, (ii) or arising out of or based upon any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in therein not misleading, except to the extent that the same not misleading arise out of or are based upon information furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (iiiii) any violation or alleged violation by the Company of the Securities Act any federal, state or any other similar federal or state securities laws or any common law rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action required of or inaction required of by the Company in connection with any registration of securities. In additionsuch registration; provided, 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. Notwithstanding the previous sentence, that the Company shall not be so liable to any Person who participates as an underwriter (other than solely due to such Person’s status as an control person of the Company) in the offering or sale of Registrable Securities or any other Person, if any, who controls such case underwriters within the meaning of the Securities Act to the extent that any loss, claim, action, damage, liability or expense arises such Losses arise out of or is are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statementstatement or such omission or alleged omission and (C) the Company has complied with its obligations under Section 3D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any Registration Statement provided for under this Section 3 is made through underwriters, (x) no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence and (y) the Company agrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 3F with respect to the indemnification of the holders of Registrable Securities; provided, that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission, made omission at or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished prior to the Company by written confirmation of the sale of Registrable Securities to such Covered Person expressly for use if such statement or omission was corrected in such Registration Statement, Prospectus, preliminary Prospectus amended or free writing supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In connection with any registration Registration Statement in which a Holder holder of Registrable Securities is participating, each such Holder holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shallprospectus and agrees, severally and not jointly, to indemnify, defend and hold harmless to the fullest full extent permitted by lawLaw, indemnify and hold harmless the Company, its directors and directors, officers, employees, agents and any employees, each Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any controls the Company (within the meaning of them may become subject under Section 15 of the Securities Act, Act and Section 20 of the Exchange Act), any state blue sky securities lawsand the partners, any equivalent non-U.S. securities laws members, directors, officers, agents or otherwiseemployees of such controlling persons, insofar as such losses, claims, actions, damages, liabilities or expenses arise from and against all Losses arising out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the any Registration Statement, Prospectusprospectus, preliminary Prospectusor form of prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment arising out of or supplement to the same or (ii) based upon any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butto the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, that such holder of Registrable Securities shall not be liable in any such case of each of clauses (i) and (ii), only to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such untrue statement Registration Statement or alleged untrue statement, prospectus or omission amendment or alleged omission, is made supplement thereto information expressly for use in such Registration Statement, Prospectus, preliminary Prospectus, free writing Statement or prospectus or any amendment or supplement to the same in reliance uponthereto which corrected or made not misleading, and in conformity with, written information prepared and previously furnished to the Company, and the Company by failed to include such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectusinformation therein. In addition, such Holder no event shall reimburse the Company, its directors liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(btherewith) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in holder upon the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge giving rise to such indemnification obligation. Such indemnity shall remain in full force and agree that, unless otherwise expressly agreed to in writing effect regardless of any investigation made by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address on behalf of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveindemnified party.
(c) Any If any Person shall be entitled to indemnification pursuant to this Agreement indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall give prompt written notice to the indemnifying party or parties from which such indemnity is sought (the “Indemnifying Parties”) of the commencement of any claim action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which it such Indemnified Party seeks indemnification. Notwithstanding indemnification or contribution pursuant hereto; provided, that the previous sentence, any failure or delay to so notify the indemnifying party Indemnifying Parties shall not relieve the indemnifying party of its obligations under this Agreement, Indemnifying Parties from any obligation or liability except to the extent that the indemnifying party is actually and materially Indemnifying Parties have been prejudiced by reason of such failure or delayfailure. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and The Indemnifying Parties shall have the right, exercisable by giving written notice to an Indemnified Party promptly after the indemnified party as promptly as practicable after receipt of written notice from such indemnified party Indemnified Party of such claim or actionProceeding, to assume, at the indemnifying party’s Indemnifying Parties’ expense, the defense of any such claim or actionProceeding, with counsel reasonably acceptable satisfactory to such Indemnified Party; provided, that an Indemnified Party (if more than one such Indemnified Party is named in any Proceeding) shall have the indemnified party. Notwithstanding the previous sentence, right to employ separate counsel in any indemnified party shall continue to be entitled such Proceeding and to participate in the defense of such claim or action, with counsel of its own choicethereof, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs fees and expenses subsequently incurred by of such counsel shall be at the indemnified party in connection with expense of such defense unless Indemnified Party or parties unless: (Ai) the indemnifying party has agreed in writing Indemnifying Parties agree to pay such fees, costs fees and expenses, ; (Bii) the indemnifying party has failed Indemnifying Parties fail promptly to assume the defense of such claim Proceeding or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails fail to employ counsel reasonably acceptable satisfactory to the indemnified party such Indemnified Party or to pursue the defense of such claim parties; or action in a reasonably vigorous manner, (Diii) the use named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party or parties and the Indemnifying Parties or an Affiliate of counsel chosen by the indemnifying party to represent the indemnified party would present Indemnifying Parties or such counsel with a conflict of interest or (E) the indemnified party has reasonably concluded that Indemnified Parties, and there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which such Indemnified Party that are different from or additional to those available to the indemnifying party. Subject Indemnifying Parties, in which case, if such Indemnified Party notifies the Indemnifying Parties in writing that it elects to employ separate counsel at the foregoing sentenceexpense of the Indemnifying Parties; the Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, no indemnifying party shallit being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one claim or action such Proceeding or separate but substantially similar or related actions Proceedings in the same jurisdiction jurisdiction, arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees, costs fees and expenses of more than one separate firm of attorneys (in addition to any plus appropriate local counsel) at any time for all indemnified partiessuch Indemnified Party. Whether or not such defense is assumed by the Indemnifying Parties, such Indemnifying Parties or Indemnified Party shall not be subject to any liability for any settlement made without its or their consent (but such consent shall not he unreasonably withheld or delayed). The indemnifying party shall not have the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party Indemnifying Parties shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim which (x) provides for other than monetary damages without the consent of the Indemnified Party (which consent shall not be unreasonably withheld or action unless such judgment delayed) or settlement (y) does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified partyIndemnified Party of a release, in form and substance reasonably satisfactory to such indemnified partythe Indemnified Party, of a full and final release from all liability in respect of such claim or action. The indemnifying party shall not Proceeding for which such Indemnified Party would be liable under this Agreement for any amount paid or payable or incurred pursuant entitled to or in connection with any judgment entered or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)indemnification hereunder.
(d) If the indemnification provided for in this Section 11 3F is held by a court of competent jurisdiction unavailable to be unavailable to, an Indemnified Party or unenforceable by, an indemnified party is insufficient to hold such Indemnified Party harmless for any Losses in respect of any loss, claim, action, damage, liability or expense referred to in which this Section 113F would otherwise apply by its terms, then the each applicable indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall have an obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossLosses, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnifying Party, on the one hand, and such Indemnified Party, on the indemnifying partyother hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the indemnifying partysuch Indemnifying Party, on the one hand, and of the indemnified partyIndemnified Party, on the other hand, shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the indemnifying party by, such Indemnifying Party or by the indemnified partyIndemnified Party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such statementaction, omission statement or violationomission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 3F(a) or 3F(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Agreement Section 3F(d) were determined by pro rata allocation or by any other method or of allocation that does not take into account of the equitable considerations referred to in this Section 11(d3F(d). In no event shall Notwithstanding the amount which provisions of this Section 3F(d), an Indemnifying Party that is a Holder holder of Registrable Securities may shall not be obligated required to contribute pursuant to this Section 11(d) exceed an any amount equal to in excess of the amount by which the net proceeds (after deducting Selling Expenses) actually received by such Holder in Indemnifying Party exceeds the sale amount of Registrable Securities any damages that gives rise such Indemnifying Party has otherwise been required to pay by reasons of such obligation to contributeuntrue or alleged untrue statement or omission or alleged omission. No indemnified party person 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.
. 3G Rules 144 and 144A. The Company shall file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder and shall take such further action as any holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell (esubject to any restrictions on Transfers hereunder) The provisions Registrable Securities without registration under the Securities Act within the limitation of this Section 11 shall remain in full force the exemptions provided by Rule 144 and effect regardless Rule 144A. Upon the request of any investigation made by or on behalf holder of any indemnified party or any officerRegistrable Securities, director or controlling person of the Company shall deliver to such indemnified party and shall survive the Transfer of any Registrable Securities by any Holderholder a written statement as to whether it has complied with such requirements.
Appears in 1 contract
Indemnification; Contribution. (a) The In the event of any registration of any securities of the Company shallunder the Securities Act, to the fullest extent permitted by lawCompany will, and hereby does, indemnify and hold harmless each Holder in the case of any registration statement filed pursuant to Section 2, 3 or 4 hereof, the holder of any Registrable SecuritiesSecurities covered by such registration statement, 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 directors and indirect general and limited partners, advisory board members, directors, officers, trusteeseach officer and director of each underwriter, managers, members, employees, agents, Affiliates and shareholders, each other person who participates as an underwriter in the offering or sale of such securities and each other Personperson, if any, who acts on behalf of controls such holder or controls any such Holder or Controlling Person (each underwriter within the meaning of the foregoing, a “Covered Person”) Securities Act against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person holder or any such director or officer or participating or controlling person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings or investigations in respect thereof) arise out of or are based upon (ix) any untrue statement or alleged untrue statement of a any material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 registration statement under which such securities were registered under the Securities Act Act, any preliminary prospectus (unless, with respect to the indemnification of the officers and directors of each underwriter and each other person participating as an underwriter, any such statement is corrected in a subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or any successor rule to Rule 405) summary prospectus included therein, or any amendment or supplement to thereto, or any document incorporated by reference in the sametherein, or (iiy) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iiiz) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In additionsuch registration, and the Company shall will reimburse such holder and each Covered Person such director, officer, participating person and controlling person for any legal or any other expenses reasonably incurred by such Covered Person them in connection with investigating, investigating or defending or settling any such loss, claim, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall not be so liable to any seller, director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, action, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omissionomission 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 in an instrument prepared by or under the direction of such seller, director, officer, participating person or controlling person for use in the preparation of such documents, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or other document. Such indemnity shall remain in full force and effect regardless of any investigation made by or incorporated on behalf of such seller or any such director, officer, participating person or controlling person and shall survive the transfer of such securities by reference such seller. The Company shall agree to provide for contribution relating to such indemnity as shall be reasonably requested by any seller of Registrable Securities or the underwriters.
(b) The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(a), that the Company shall have received an undertaking satisfactory to it from the prospective sellers of such Registration Statementsecurities and their underwriters, Prospectusto indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 7) the Company, each director of the Company, each officer of the Company who shall sign such registration statement and each other person, if any, who controls the Company within the meaning of the Securities Act, with respect to any statement in or omission from such registration statement, any preliminary Prospectusprospectus, free writing final prospectus or summary prospectus included therein, or any amendment or supplement to thereto, but only if such statement or any document incorporated by reference in the same omission was made in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company through an instrument prepared by or under the direction of such Covered Person expressly sellers or their underwriters specifically stating that it is for use in the preparation of such Registration Statement, Prospectusregistration statement, preliminary Prospectus prospectus, final prospectus, summary prospectus, amendment or free writing prospectus. 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 participatingsupplement, 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 provided that (i) any untrue 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 to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify provide indemnification pursuant to this Section 11(b7(b) shall be individual and several, and not joint and several, for among such sellers and (ii) the liability of each participating Holder and seller hereunder shall be proportional to and shall not exceed an amount equal limited to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement proportion of any such loss, claim, damage, liabilityliability or expense which is equal to the proportion that the public offering price of the shares sold by such seller under such registration statement bears to the total public offering price of all securities sold thereunder, action but not in any event to exceed the net proceeds received by such seller from the sale of Registrable Securities covered by such registration statement. Such indemnity shall remain in full force and effect regardless of any investigation made by or proceeding if on behalf of the Company or any such settlement is effected without director, officer or controlling person and shall survive the consent transfer of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing securities by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havesellers.
(c) Any Person entitled Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to indemnification pursuant in the preceding subdivisions of this Section 7, such indemnified party will, if a claim in respect thereof is to this Agreement shall be made against an indemnifying party, give prompt written notice to the indemnifying party latter of the commencement of such action; provided, however, that the failure of any claim with respect indemnified party to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subdivisions of this Agreement, Section 7 except to the extent that the indemnifying party is actually and materially prejudiced by reason as a result of such failure or delayto give notice. In case a claim or an any such action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have to assume the rightdefense thereof, exercisable by giving written notice jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party as promptly as practicable after receipt of written party. After notice from the indemnifying party to such indemnified party of such claim or action, its election so to assume, at the indemnifying party’s expense, assume the defense of any such claim or actionthereof, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 liable to reimburse the such indemnified party for any fees, costs and legal or other expenses subsequently incurred by the indemnified party in connection with such the defense thereof unless (Ai) the indemnifying party has agreed in writing shall have failed to pay retain counsel for the defense of such fees, costs and expensesclaim(s) as aforesaid, (Bii) the indemnifying party has failed to 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 action, the indemnifying party fails to employ counsel reasonably acceptable to and the indemnified party or shall have mutually agreed to pursue the defense retention of such claim or action in a reasonably vigorous manner, (D) the use of separate counsel chosen by the indemnifying party to represent for the indemnified party would present such counsel with a conflict of interest party, or (Eiii) the indemnified party has shall have 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs and expenses of more than one firm of attorneys (in addition to any local counsel) for all indemnified parties. The which case the indemnifying party shall not have the right to settle a claim or direct the defense of such action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent on behalf of the indemnified party); provided, The however, in no event shall the indemnifying party shall not be liable for the reasonable expenses of more than one counsel for all indemnified parties. No indemnifying party will consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, party of a full and final release from all liability in respect of to such claim or actionlitigation. The indemnifying party shall not be liable under this Agreement for any amount paid or payable or incurred pursuant to or in connection with settlement of any judgment entered or settlement proceeding effected with without the written consent of an indemnified party unless the such indemnifying party has also consented to such judgment or settlement (party, such consent not to be unreasonably withheld, conditioned withheld or delayed), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for Indemnification similar to that specified in this Section 11 is held 7 (with appropriate modifications) shall be given by a court the Company and each seller of competent jurisdiction Registrable Securities with respect to be unavailable to, any required registration or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result other qualification of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as Registrable Securities under any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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 misrepresentationregulation.
(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. (a) The Company shall, to the fullest extent permitted by law, will indemnify and hold harmless each Holder 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, holder and each other Personaffiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, if any, who acts on behalf of or controls under any such Holder Blue Sky Law or Controlling Person (each of the foregoing, a “Covered Person”) regulation against any losses, claims, actions, damages, liabilities and expensesor liabilities, joint or several, to which such Covered Person holder may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statementpreliminary prospectus, Prospectusregistration statement, preliminary Prospectusprospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto, or any document incorporated by reference in arise out of or are based upon the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company misleading, and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall will reimburse each Covered Person such holder and affiliate for any legal or other expenses reasonably incurred by such Covered Person holder in connection with investigating, investigating or defending or settling any such lossaction or claim regardless of the negligence of any such holder or affiliate; provided, claimhowever, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable in any such case to the extent that any such loss, claim, action, damage, or liability or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omission, omission made or incorporated by reference in any such Registration Statementpreliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any such amendment or supplement to or any document incorporated by reference in the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by any such Covered Person holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder Each holder of Registrable Securities is participating, each such Holder shall furnish Common Stock registered pursuant to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, this Agreement will indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person Company against any losses, claims, actions, damages, or liabilities and expenses, joint or several, to which they or any of them the Company may become subject subject, under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement thereto, or arise out of or supplement to are based upon the same or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butin each case to the extent, in the case of each of clauses (i) and (ii), but only to the extent extent, that such untrue statement or alleged untrue statement, statement or omission or alleged omission, is omission was made in such Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havetherein.
(c) Any Person entitled Promptly after receipt by an indemnified party under Sections 8(a) or (b) above of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to indemnification pursuant to this Agreement shall give prompt written notice to be made against the indemnifying party under either such subsection, notify the indemnifying party in writing of any claim with respect the commencement thereof; but the omission so to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so 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 its obligations under this Agreement, 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 pursuant to this Agreement is brought against an indemnified party, commencement thereof 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, assume the defense of any such claim or action, with counsel reasonably acceptable thereof by notice in writing to the indemnified party. Notwithstanding After notice from the previous sentence, any indemnifying party to such indemnified party shall continue of its election to be entitled to participate in assume the defense of such claim or actionthereof, with counsel of its own choice, but the indemnifying party shall not be obligated liable to reimburse the such indemnified party under either of such subsections for any feeslegal expenses of other counsel or any other expense, costs and expenses in each case subsequently incurred by the such indemnified party party, in connection with such the defense unless (A) thereof other than reasonable costs of investigation incurred prior to the assumption by the indemnifying party has agreed party, unless such expenses have been specifically authorized in writing to pay such feesby the indemnifying party, costs and expenses, (B) the indemnifying party has failed to assume the defense and 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 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 action, indemnified party and the indemnifying party fails by the same counsel would be inappropriate due to employ actual or potential differing interests between them, in each of which cases the fees of counsel reasonably acceptable to for the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen will be paid by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 8 is held by a court of competent jurisdiction unavailable or insufficient to be unavailable to, or unenforceable by, hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or action in respect thereof) referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company and the indemnifying partyholder or holders from this Agreement and from the offering of the shares of Common Stock. If If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, the 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 the such relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Company and the indemnifying partyholders in connection with the statement or omissions that resulted in such losses, claims, damages, or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Agreement Section 8(d) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method or of allocation that does not take into account the equitable considerations referred to above in this subsection (e). Except as provided in Section 8(c), the amount paid or payable by an indemnified party as a result of the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above in this Section 11(d). In no event 8(d) shall the amount which a Holder of Registrable Securities may be obligated deemed to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received include any legal or other expenses reasonably incurred by such Holder indemnified party in the sale of Registrable Securities that gives rise to connection with investigation or defending any such obligation to contributeaction or claim. No indemnified party person 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 person who was not guilty of such fraudulent misrepresentation.
(e) The provisions of . Notwithstanding any provision in 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.Section
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, agrees to the fullest extent permitted by law, indemnify and hold harmless (i) the Holder, (ii) each Holder of Registrable Securities, any other Person who is participates as an underwriter in the offering or might be deemed to be a “controlling sale of such securities, (iii) each person” of the Company or any of its subsidiaries , if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act) the Holder or underwriter (each such Person, any of the persons referred to in this clause (iii) being hereinafter referred to as a “Controlling Person”), their "controlling person") and (iv) the respective direct and indirect general and limited partners, advisory board membersofficers, directors, officers, trustees, managers, memberspartners, employees, agents, Affiliates representatives and shareholders, and each other Person, if any, who acts on behalf agents of or controls any such the Holder or Controlling Person underwriter or any controlling person (each of any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the foregoingfullest extent lawful, a “Covered Person”) from and against any and all losses, claims, actions, damages, liabilities and liabilities, judgments or expenses, joint or severalseveral (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such Covered indemnified Person may become subject under either Section 15 of the Securities Act, Act or Section 20 of the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus Statement or Prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto), or any document incorporated by reference in the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged a violation by the Company of the Securities Act or any other similar federal or state securities laws law, or any rule or regulation promulgated under such federal the Securities Act or any state securities laws law, or any other law applicable to the Company and relating to any action such registration or inaction required of the Company in connection with any registration of securities. In additionqualification, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, except insofar as such losses, claims, actions, damages, liabilities liabilities, judgments or expenses arise out of any such indemnified Person; (x) are caused by any such untrue statement or are based upon (i) any untrue omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of a material fact contained in any of such indemnified Person expressly for use therein; (y) with respect to the Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under result from the fact that the Holder sold Securities Act to a person to whom there was not sent or any successor rule to Rule 405) given, at or any amendment of or supplement prior to the same or (ii) any omission or alleged omission written confirmation of such sale, a material fact required to be stated in such Registration Statement, copy of the Prospectus, preliminary Prospectus as amended or free writing prospectus or necessary to make supplemented, if the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only Company shall have previously furnished copies thereof to the extent that Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or alleged untrue statementomission; or (z) as a result of the use by an indemnified Person of any Prospectus when, or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.2(b)(iv), the indemnified Person or the Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder shall reimburse the Company, its directors and officers, employees, agents and on behalf of any indemnified 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to survive the net proceeds (after deducting Selling Expenses) actually received transfer of such securities by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders In case any action shall be brought or asserted against any of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim indemnified Persons with respect to which it seeks indemnification. Notwithstanding indemnity may be sought against the previous sentenceCompany, any failure or delay to so such indemnified Person shall promptly notify the indemnifying party Company and the Company shall not relieve assume the indemnifying party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delaydefense thereof. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an Such indemnified party, the indemnifying party shall be entitled to participate in and Person shall have the right, exercisable by giving written notice right 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 employ separate counsel in any such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to be entitled action and to participate in the defense of such claim or action, with counsel of its own choicethereof, but the indemnifying party fees and expenses of such counsel shall not be obligated to reimburse at the expense of the indemnified party for any fees, costs and expenses subsequently incurred Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the indemnified party in connection with such defense unless Company, (Aii) the indemnifying party has agreed in writing to pay such fees, costs and expenses, (B) the indemnifying party has Company shall have failed to 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 action, the indemnifying party fails to and employ counsel reasonably acceptable or (iii) the named parties to any such action (including any implied parties) include both the indemnified party or to pursue Person and the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by the indemnifying party to represent Company and the indemnified party would present such Person shall have been advised in writing by its counsel with a conflict of interest 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 Company (in which case the Company shall not have the right to assume the foregoing sentencedefense of such action on behalf of the indemnified Person), no indemnifying party shallit being understood, however, that the Company shall not, in connection with any one claim or such action or separate but substantially similar or related actions in the same jurisdiction or proceedings arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees, costs reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified partiesPersons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. The indemnifying party Company shall not have be liable for any settlement of any such action or proceeding effected without the right Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to settle a claim or action for which indemnify and hold harmless any indemnified party is entitled to indemnification pursuant to this Agreement without 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 partyPerson, The indemnifying party shall not settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any judgment pending or enter into threatened action, claim, litigation or agree to proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any settlement relating to such claim or action indemnified Person is a party thereto), unless such judgment settlement, compromise, consent or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and termination includes as an unconditional term release of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement to such each indemnified party, in form and substance reasonably satisfactory to such indemnified party, of a full and final release Person from all liability arising out of such action, claim litigation or proceeding.
(b) The Holder agrees 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) with respect to actions based on information relating to the Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Holder from the sale or other disposition of its Restricted 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 the Holder, such claim or action. The indemnifying party Holder shall have the rights and duties given the Company in Section 2.6(a) (except that the Holder may but shall not be liable under this Agreement for any amount paid required to assume the defense thereof), and the Company or payable its directors or incurred pursuant officers or such controlling person shall have the rights and duties given to or in connection with any judgment entered or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayedHolder by Section 2.6(a).
(dc) If the indemnification provided for in this Section 11 2.6 is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an indemnified party under Section 2.5(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losslosses, claimclaims, actiondamages, damageliabilities, liability judgments or expense expenses referred to in this Section 11therein, then the each applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreementparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims damages, actionliabilities, damage, liability judgments or expense expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company on the one hand and the indemnifying party. If Holder on the other hand from sale of Restricted Securities or (ii) if such allocation provided by the preceding sentence clause (i) above is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence clause (i) above but also the relative fault of the indemnified party Company and the indemnifying partyHolder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, Company on the one hand, hand and of the indemnified party, Holder on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Company or by the indemnified party, whether Holder and the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties amount paid 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 2.6(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and the Holder agree that it would not be just and equitable if contribution pursuant to this Agreement Section 2.6(c) were determined by pro rata allocation or by any other method or of allocation that which does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d). In no event 2.6(c) the Holder (and its related indemnified Persons) shall not be required to contribute, in the aggregate, any amount in excess of the amount by which a Holder the dollar amount of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in upon the sale of Registrable the Restricted Securities that gives rise exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such obligation to contributeuntrue statement or omission or alleged omission. No indemnified party person guilty or liable of fraudulent misrepresentation misrepresentations (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 indemnity, and contribution provisions of contained in this Section 11 shall remain 2.6 are in full force and effect regardless of addition to any investigation made by or on behalf of any liability which the indemnifying person may otherwise have to the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the Transfer of any Registrable Securities by any Holderpersons referred to above.
Appears in 1 contract
Sources: Registration Rights Agreement (Compost America Holding Co Inc)
Indemnification; Contribution. (ai) The In the event of any registration of any Registrable Securities pursuant to the terms of Section 6, the Company shallwill indemnify and hold harmless, to the fullest extent permitted by law, indemnify and hold harmless each Holder 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”), Designated Holders and their respective direct and indirect general and limited partners, advisory board membersAffiliates, directors, officers, partners, trustees, managers, members, employees, legal counsel, accountants, financial advisors and agents, Affiliates and shareholders, and each other Person, if any, who acts on behalf controls (within the meaning of the Securities Act and the Exchange Act) such Designated Holder or controls any such Holder or Controlling Person directors, officers, partners, trustees, employees, legal counsel, accountants, financial advisors and agents (each of the foregoing, a “Covered Person”"designated indemnified party") against any and all losses, claims, actions, damages, liabilities and expensesexpenses (including reasonable costs of investigation), joint or several, to which such Covered Person designated indemnified party may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (ix) any untrue statement or alleged untrue statement of a any 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 to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, (iiy) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) contained in any violation or alleged violation by the Company of Registration Statement under which such Registrable Securities were registered under the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In additionAct, the Company shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigatingPROVIDED, defending or settling any such lossHOWEVER, claim, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable in any such case to the extent that any such loss, claim, action, damage, damage or liability (or expense actions or proceedings in respect thereof) arises out of or is based upon (x) any such untrue statement of any material fact or alleged untrue statement, (y) any omission to state a material fact required to be stated therein or omission or alleged omission, made or incorporated by reference necessary to make the statements therein not misleading in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same thereto, in reliance upon, upon and in conformity with, with written information prepared concerning such Designated Holder and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havepreparation thereof.
(bii) In connection with The Company may require, as a condition to including any registration in which a Holder of Registrable Securities is participatingin any Registration Statement filed pursuant to Section 6, each such Holder shall furnish to that the Company in writing shall have received an undertaking from each Designated Holder selling such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shallRegistrable Securities, severally and not jointly, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and directors, officers, employeeslegal counsel, agents accountants and financial advisors and each other Person, if any, who controls (within the meaning of the Securities Act and the Exchange Act) the Company or any Person who is or might be deemed to be such directors, officers, legal counsel, accountants and financial advisors (each of the foregoing, a Controlling Person "Company Indemnified Party") against any losses, claims, actions, damages, liabilities and or expenses, joint or several, to which they or any of them such Company Indemnified Party may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (ix) any untrue statement 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 to Rule 405) or any amendment of or supplement to the same or (iiy) any omission or alleged omission of to state a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein not misleading contained in any Registration Statement under which such Registrable Securities were registered under the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 Securities Act or any amendment or supplement to the same thereto, if such statement or omission was made in reliance upon, upon and in conformity with, with written information prepared concerning such Designated Holder and furnished to the Company by Company; PROVIDED, in each instance, that any Designated Holder's maximum liability in respect of such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) indemnification obligations shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal limited to the amount of net (pre-tax) proceeds (after deducting Selling Expenses) actually received by such Designated Holder in pursuant to the sale of such Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveSecurities.
(ciii) Any Person entitled Promptly after receipt by any designated Indemnified Party or Company Indemnified Party (each, an "Indemnified Party") of notice of the commencement of any action, suit, proceeding or investigation or threatened thereof in writing for which the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement shall Agreement, such Indemnified Party will give prompt written notice thereof to the indemnifying party Indemnifying Party; PROVIDED, HOWEVER, that the failure of any claim with respect Indemnified Party to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party Indemnifying Party of its obligations under this Agreement, except to the extent that the indemnifying party Indemnifying Party is actually and materially prejudiced by reason of such failure or delayto give notice. In case a claim or an If notice of commencement of any such action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified partyIndemnified Party, the indemnifying party shall be entitled to Indemnifying Party may, at its expense, 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, assume the defense of any such claim or actionthereof, with counsel reasonably acceptable satisfactory to such Indemnified Party. The Indemnified Party shall have the indemnified party. Notwithstanding the previous sentence, right to employ separate counsel in any indemnified party shall continue to be entitled to such action and participate in the defense of such claim or action, with counsel of its own choicethereof, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs fees and expenses subsequently incurred of such counsel shall be paid by the indemnified party in connection with such defense Indemnified Party unless (Ai) the indemnifying party has agreed in writing Indemnifying Party agrees to pay such fees, costs and expensesthe same, (Bii) the indemnifying party has failed Indemnifying Party fails to assume the defense of such claim action with counsel satisfactory to the Indemnified Party in its reasonable judgment or (iii) the named parties to any such action within a reasonable time after receipt of notice (including any impleaded parties) have been advised by such counsel in writing that either (x) representation of such claim or action, (C) having assumed Indemnified Party and the defense of such claim or 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 Indemnifying Party by the indemnifying party to represent the indemnified party same counsel would present such counsel with a conflict be inappropriate under applicable standards of interest professional conduct or (Ey) 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 the Indemnified Party which are different from or additional to those available to the indemnifying partyIndemnifying Party. Subject to In no event shall the foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, Indemnifying Party be liable responsible for the fees, costs and expenses fees of more than one firm of attorneys counsel (in addition to any local counsel) for all indemnified partiesIndemnified Parties. The indemnifying party No Indemnifying Party or Indemnified Party shall not have the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement without the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement for any amount paid or payable or incurred pursuant to or in connection with any judgment entered or settlement effected with the written consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)other.
(d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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) 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. (a) The Company shall, to To the fullest extent permitted by law, the Company will indemnify Permatec, each of its officers, directors, members and hold harmless partners, and each Holder of Registrable Securitiesperson controlling Permatec, any Person who is with respect to which registration, qualification or might be deemed compliance has been effected pursuant to be a “this Agreement, each director and controlling person” person of the Company or any of its subsidiaries within the meaning of Section 15 and each officer of the Securities Act or Section 20 of Company who signed 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 shareholdersregistration statement, and each other Personunderwriter, if any, and each person who acts on behalf of or controls any underwriter, against all claims, losses, damages and liabilities (or actions, proceedings or settlements, if such Holder or Controlling Person (each settlements are effected with the written consent of the foregoingCompany, a “Covered Person”in respect thereof) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any prospectus, offering circular or incorporated by reference in other document (including any Registration Statementrelated registration statement, Prospectusnotification or the like) incident to any such registration, preliminary Prospectusqualification or compliance, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws the Securities Exchange Act of 1934 (the "Exchange Act") or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration such registration, qualification or compliance, and will reimburse Permatec, each of securities. In additionits officers, the Company shall reimburse directors, members and partners, and each Covered Person person controlling Permatec, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by such Covered Person in connection with investigating, investigating and defending or settling any such claim, loss, claimdamage, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall will not be so liable in any such case to the extent that any loss, such claim, actionloss, damage, liability or expense arises out of or is based upon on any such untrue statement or alleged untrue omission made in such registration statement, prospectus, offering circular or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any other document incorporated by reference in the same in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Covered Person expressly Permatec and stated to be specifically for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to To the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, Permatec will indemnify and hold harmless the Company, its directors each director, officer and officerscontrolling person of the Company and each officer of the Company who signed the registration statement, employeesand each underwriter, agents if any, and each person who controls any Person who is or might be deemed to be a Controlling Person underwriter, against any all claims, losses, claims, damages and liabilities (or actions, damagesproceedings or settlements, liabilities and expensesif such settlements are effected with the written consent of Permatec, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise in respect thereof) arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any prospectus, offering circular or other document in which Permatec's shares are included (including any related registration statement, notification or the Registration Statementlike) incident to any such registration, Prospectusqualification or compliance, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, but, in the each case of each of clauses (i) and (ii), only to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or alleged untrue statement, or omission or alleged omission, is made in such Registration Statementregistration statement, Prospectusprospectus, preliminary Prospectus, free writing prospectus offering circular or any amendment or supplement to the same other document in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder expressly Permatec and stated to be specifically for use therein, or any violation by Permatec of the Securities Act or the Exchange Act or any rule or regulation thereunder applicable to Permatec and relating to action or inaction required of Permatec in connection with any such Registration Statementregistration, Prospectusqualification or compliance, preliminary Prospectus or free writing prospectus. In addition, such Holder shall and will reimburse the Company, each of its directors and officers, employeesdirectors, agents and each person controlling the Company, each such underwriter and each person who controls any Person who is or might be deemed to be a Controlling Person such underwriter, for any legal or and any other expenses reasonably incurred by them in connection with investigating, investigating and defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveproceeding.
(c) Any Person The party entitled to indemnification pursuant to under this Agreement Section 3 (the "Indemnified Party") shall give prompt written notice to the indemnifying party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim with respect as to which it seeks indemnification. Notwithstanding indemnity may be sought, and shall permit the previous sentenceIndemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, 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, except that if the defendants in any action include both the Indemnified Party and the Indemnifying Party and there is a conflict of interest which would prevent counsel for the Indemnifying Party from also representing the Indemnified Party, the Indemnified Party or Parties shall have the right to select separate counsel to participate in the defense of such action on behalf of such Indemnified Party or Parties and to be indemnified for the expense of such separate Counsel, and provided further that the failure or delay of any Indemnified Party to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party Indemnifying Party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of unless such failure or delayto notify materially and adversely affects the Indemnifying Party's ability to defend such action. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified partyNo Indemnifying 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 such claim or actionlitigation, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection except with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified partyeach Indemnified Party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, Indemnified Party of a full and final release from all liability in respect of such claim or actionlitigation. The indemnifying party Each Indemnified Party shall not furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be liable under this Agreement for any amount paid or payable or incurred pursuant to or reasonably required in connection with any judgment entered or settlement effected with the consent defense of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 11 is held 3 shall for any reason be unenforceable by a court of competent jurisdiction to be unavailable toan Indemnified Party, or unenforceable by, an indemnified party although otherwise available in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11accordance with its terms, then the applicable indemnifying partyeach Indemnifying Party shall, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of the losses, claims, damages, liabilities or expenses with respect to which such lossIndemnified Party has claimed indemnification, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnified Party on the one hand and the indemnifying partyIndemnifying Party on the other in connection with the statement or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of benefits received by the indemnifying party, Company on the one hand, hand and of the indemnified party, Permatec on the other handshall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total proceeds received by Permatec, in each case as set forth in the table on the cover page of the prospectus. The relative fault, in the case of an untrue statement, alleged untrue statement, omission or alleged omission, shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party Indemnifying Party or the indemnified party. The relative fault shall also be determined by reference to the Indemnified Party, and such parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, alleged statement, omission or violationalleged omission. The parties Company and Permatec agree that it would not be just and equitable if contribution pursuant hereto were to this Agreement were be determined by pro rata allocation or by any other method or of allocation that which does not take into account such equitable consideration. 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 or other expense reasonably incurred by such Indemnified Party in this Section 11(d)connection with investigating or defending against any action or claim which is the subject hereof. In no event case, however, shall Permatec be responsible for a portion of the amount which a Holder contribution obligation in excess of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale to Permatec of Registrable Securities that gives rise to such obligation to contributesecurities sold as contemplated herein. No indemnified party person guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(fSection11(f) of the Securities Act Act) shall be entitled to contribution from any Person person who was is 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
Sources: Registration Rights Agreement (Medi Ject Corp /Mn/)
Indemnification; Contribution. (a) The Company shall, to To the fullest extent permitted by law, the Company will indemnify each Holder, each of its officers, directors, members and hold harmless partners, and each Holder of Registrable Securitiesperson controlling such Holder, any Person who is with respect to which registration, qualification or might be deemed compliance has been effected pursuant to be a “this Agreement, each director and controlling person” person of the Company or any of its subsidiaries within the meaning of Section 15 and each officer of the Securities Act or Section 20 of Company who signed 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 shareholdersregistration statement, and each other Personunderwriter, if any, and each person who acts on behalf of or controls any underwriter, against all claims, losses, damages and liabilities (or actions, proceedings or settlements, if such Holder or Controlling Person (each settlements are effected with the written consent of the foregoingCompany, a “Covered Person”in respect thereof) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) on any untrue statement (or alleged untrue statement 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 preliminary, free-writing or final), offering circular or other document (including any related registration statement, notification or the Securities Act like) incident to any such registration, qualification or compliance, or any successor rule to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or the Exchange Act or any other similar federal or state applicable securities laws or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In additionsuch registration, the Company shall qualification or compliance, and will reimburse each Covered Person such Holder, each of its officers, directors, members and partners, and each person controlling such Holder, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by such Covered Person in connection with investigating, investigating and defending or settling any such claim, loss, claimdamage, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall will not be so liable in any such case to the extent that any loss, such claim, actionloss, damage, liability or expense arises out of or is based upon on any such untrue statement or alleged untrue omission made in such registration statement, prospectus, offering circular or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any other document incorporated by reference in the same in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Covered Person expressly Holder or underwriter and stated to be specifically for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to To the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify and hold harmless the Company, each of its directors directors, officers and controlling persons, and each underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of the Securities Act or the Exchange Act or the rules and regulations thereunder, each other such Holder and Other Stockholder (if and to the extent such Other Stockholder has agreed to indemnify the Holders as set forth in this clause (b)) including Registrable Securities and other securities in the securities as to which such registration, qualification or compliance is being effected, and each of their officers, employeesdirectors, agents members and any Person who is partners, and each person controlling such Holder or might be deemed to be a Controlling Person Other Stockholder, against any all claims, losses, claims, damages and liabilities (or actions, damages, liabilities and expenses, joint proceedings or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise settlements in respect thereof) arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in the Registration Statementany such registration statement, Prospectusprospectus, preliminary Prospectusoffering circular or other document, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butand will reimburse the Company and such Holders, Other Stockholders, 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 case of each of clauses (i) and (ii)extent, but only to the extent extent, that such untrue statement (or alleged untrue statement, ) or omission (or alleged omission, ) is made in such Registration Statementregistration statement, Prospectusprospectus, preliminary Prospectus, free writing prospectus offering circular or any amendment or supplement to the same other document in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder expressly and stated to be specifically for use in such Registration Statementtherein; provided, Prospectushowever, preliminary Prospectus or free writing prospectus. In addition, that the obligations of each 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) hereunder shall be individual and several, not joint and several, for each participating Holder and shall be proportional limited to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by to each such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havesecurities sold as contemplated herein.
(c) Any Person Each party entitled to indemnification pursuant to under this Agreement Section 7 (the “Indemnified Party”) shall give prompt written notice to the indemnifying party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim with respect as to which it seeks indemnification. Notwithstanding indemnity may be sought, and shall permit the previous sentenceIndemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, 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 or delay of any Indemnified Party to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party Indemnifying Party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of unless such failure or delayto notify materially adversely affects the Indemnifying Party’s ability to defend such action. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified partyNo Indemnifying 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 such claim or actionlitigation, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection except with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified partyeach Indemnified Party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, Indemnified Party of a full and final release from all liability in respect of such claim or actionlitigation. The indemnifying party Each Indemnified Party shall not furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be liable under this Agreement for any amount paid or payable or incurred pursuant to or reasonably required in connection with any judgment entered or settlement effected with the consent defense of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 11 is held 7 shall for any reason be unenforceable by a court of competent jurisdiction to be unavailable toan Indemnified Party, or unenforceable by, an indemnified party although otherwise available in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11accordance with its terms, then the applicable indemnifying partyeach Indemnifying Party shall, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of the losses, claims, damages, liabilities or expenses with respect to which such lossIndemnified Party has claimed indemnification, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnified Party on the one hand and the indemnifying partyIndemnifying Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault fault, in the case of the indemnifying partyan untrue statement, on the one handalleged untrue statement, and of the indemnified party, on the other handomission or alleged omission, shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party Indemnifying Party or the indemnified party. The relative fault shall also be determined by reference to the Indemnified Party, and such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, alleged statement, omission or violationalleged omission. The parties Company and each Holder agree that it would not be just and equitable if contribution pursuant hereto were to this Agreement were be determined by pro rata allocation or by any other method or of allocation that 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 or other expenses reasonably incurred by such Indemnified Party in this Section 11(d)connection with investigating or defending against any action or claim which is the subject hereof. In no event case, however, shall the amount which a Holder be responsible for a portion of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the contribution obligation in excess of the net proceeds (after deducting Selling Expenses) actually received by to such Holder in the sale of Registrable Securities that gives rise to such obligation to contributesecurities sold as contemplated herein. No indemnified party person 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 person who was is not guilty of such fraudulent misrepresentation.
(e) The provisions of Anything to the contrary contained in this Section 11 7 notwithstanding, (i) no Holder shall remain be liable for any indemnification or contribution in full force and effect regardless excess of the net proceeds received by it from any investigation made by or on behalf sale 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 Holderwhich has been registered hereunder and (ii) all indemnification and contribution obligations of the Holders shall be several and not joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Fairway Group Holdings Corp)
Indemnification; Contribution. (a) The Company shall, to the fullest extent permitted by law, indemnify and hold harmless each Holder of Registrable Securities, and any Person who which is or might be deemed to be a “controlling person” of the Company each 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”), and their respective direct and indirect general and limited partners, advisory board members, directors, officers, trustees, managers, members, employees, agents, Affiliates officers and shareholders, and each other Person, if any, who acts on behalf of or controls any such Holder or Controlling Person employees (each of the foregoing, together with such Holders, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws laws, common law 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 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 to Rule 405thereto) or any amendment thereof or supplement to thereto or any document incorporated by reference in the sametherein, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact in the same not misleading information conveyed by the Company to any purchaser at the time of the sale to such purchaser, or the omission or alleged omission to state therein a material fact required to be stated therein or (iiiiv) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, and the Company shall reimburse each such Covered Person Persons for any legal or other documented expenses (including counsel fees) reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability. Notwithstanding the previous sentence; provided that, subject to Section 11(c), 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 to thereto or any document incorporated by reference in the same therein in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectustherein. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In Subject to Section 11(c), in connection with any registration in which a Holder of Registrable Securities is participating, each such Holder e& shall furnish to the Company in writing such information regarding itself and any Holder as the Company reasonably requests is required for use in connection with any such Registration Statement or Prospectus. Each Holder Prospectus and shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who which is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws laws, common law 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405thereto) or any amendment of thereof or supplement to the same thereto or any document incorporated by reference therein, or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, but, in the case of each of clauses (i) and (ii), only 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 (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement to the same 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 any Holder expressly for use in such Registration Statementtherein, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder and e& shall reimburse the Company, its directors and officers, employees, agents and any Person who which is or might be deemed to be a Controlling Person for any legal or other documented expenses (including counsel fees) reasonably incurred by them in connection with investigating, defending or settling any such loss, claim, action, damage or liability. The ; provided that the obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to of e& only and shall not exceed an amount equal to the net proceeds (after deducting Selling Expensesunderwriters’ discounts and commissions) actually received by such Holder all selling Holders in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The This indemnity agreement contained shall be in this Section 11(baddition to any liability which e& may otherwise have.
(c) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities e& hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holderse&, for all purposes of this Agreement (including Section 11(a) and (b)), the only information furnished or to be furnished by any Holder to the Company for use in any such Registration Statement Statement, Prospectus, preliminary Prospectus, free writing prospectus or Prospectus relating to the Registrable Securities any amendment thereof or in supplement thereto or any amendmentdocument incorporated by reference therein, supplement or preliminary materials associated with the same are statements specifically relating to (ai) the beneficial ownership of shares of Common Stock the Registrable Securities by such Holder and its Affiliates, Affiliates as disclosed in the section of such document entitled “Selling Stockholders” or “Principal and Selling Stockholders” and (bii) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveselling Holders.
(cd) Any Person entitled to indemnification pursuant to this Agreement hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, ; provided that any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreementhereunder, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, ; provided that any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 or to pursue the defense of such claim or action in a reasonably vigorous reasonable 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 (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 in the same jurisdiction 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 (x) have the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement hereunder without the consent of the indemnified party, The indemnifying party shall not and (y) consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action action, in each case unless such judgment or settlement (A) does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and (B) includes as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(de) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreementhereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, on the one hand, and of the indemnified party, on the other hand, in connection with the statements, omissions or violations referred to in this Section 11 which resulted in such loss, claim, action, damage, liability or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law thereunder applicable to the Company, and, Company and relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction securities was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to , and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement hereto were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d11(e). In no event shall the amount which a e& or any other Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d11(e) exceed an amount equal to the net proceeds (after deducting Selling Expensesunderwriters’ discounts and commissions) actually received by such Holder the selling Holders in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from any Person who which was not guilty of such fraudulent misrepresentation.
(ef) The provisions Indemnification similar to that specified in the preceding paragraphs of this Section 11 (with appropriate modifications) shall be given by the Company and e& with respect to any required registration or other qualification of securities under any applicable securities and state “blue sky” laws.
(g) 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 the indemnified party Person or any officer, director or controlling person Controlling Person of such indemnified party Person and shall survive the Transfer transfer of any securities and the Termination Date but only with respect to offers and sales of Registrable Securities by any Holdermade before the Termination Date or during the period following the Termination Date referred to in Section 7(i).
Appears in 1 contract
Sources: Registration Rights Agreement (Emirates Telecommunications Group Co PJSC)
Indemnification; Contribution. (a) The Company shallIn the event of any registration of any equity securities of the Corporation under the Securities Act or applicable Canadian Securities Laws, to the fullest extent permitted by lawCorporation will, and hereby does agree to, indemnify and hold harmless harmless, in the case of any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof or any related preliminary prospectus, issuer free writing prospectus (as defined in Rule 433(h) under the Securities Act), or issuer information (as defined in Rule 433(h) under the Securities Act) which issuer information is required to be filed pursuant to Rule 433(d) under the Securities Act, the seller of any Registrable Shares covered by such registration statement or prospectus or any related preliminary prospectus or free writing prospectus, its respective directors and officers, partners and members, each Holder of Registrable Securities, any other Person who is participates as an underwriter in the offering or might be deemed to be a “controlling person” sale of the Company such securities, and each other Person, if any, who controls such seller or any of its subsidiaries such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such PersonAct, 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 Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 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 to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws applicable Canadian Securities Laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a any material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, free writing any registration statement or prospectus (as defined in Rule 405 under which such securities were registered under the Securities Act Act, any related preliminary prospectus or free writing prospectus, or any successor rule to Rule 405) preliminary prospectus or final prospectus filed with applicable Canadian Securities Commissions, or any amendment of or supplement to the same thereto, or any document incorporated by reference therein, or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading; provided, buthowever, that the Corporation shall not be liable in the any such case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, liability (or action or proceeding if in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such settlement is effected without the consent of registration statement, any such Holder. The Company preliminary prospectus, final prospectus or amendment or supplement thereto, in reliance upon and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only conformity with written information furnished or to be furnished to the Company Corporation for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock preparation thereof by such Holder seller or underwriter, as the case may be, and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such documentidentified as such. This indemnity shall be in addition to any liability which such Holder the Corporation may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or any such director or officer, underwriter or controlling Person and shall survive the transfer of such securities by such seller.
(b) The Corporation may require, as a condition to including any Registrable Shares in any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, that the Corporation shall have received an agreement satisfactory to it from (i) the prospective seller of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 9(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 director of the Corporation and each of the Corporation’s officers who signed the registration statement or prospectus, each such underwriter of such securities, and each other Person, if any, who controls the 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 9(a) above) the Corporation, each officer who signed the registration statement or prospectus and each director of the Corporation, each prospective seller, and each other Person, if any, who controls the Corporation or any such 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 preliminary prospectus, final prospectus, or any amendment or supplement thereto, if such untrue statement or omission was made in reliance upon and in conformity with written information furnished by such prospective seller or such underwriter, as the case may be, to the Corporation for use in the preparation of such registration statement, preliminary prospectus, final prospectus, amendment or supplement, and identified as such. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Corporation or any such director, officer or controlling Person and shall survive the transfer of such securities by such seller.
(c) Any Person entitled Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding (including any governmental investigation) involving a claim referred to indemnification pursuant in either Section 9(a) above or (b) above, such indemnified party will, if a claim in respect thereof is to this Agreement shall be made against an indemnifying party, give prompt written notice to the indemnifying party latter of the commencement of such action; provided, however, that the failure of any claim with respect indemnified party to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding provisions of this AgreementSection 9, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delayto give notice. In case a claim or an any such action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have assume the rightdefense thereof, exercisable by giving written notice jointly with any other indemnifying party similarly notified, to the indemnified party as promptly as practicable extent that it may wish, and after receipt of written notice from the indemnifying party to such indemnified party of such claim or action, its election so to assume, at the indemnifying party’s expense, assume the defense of any such claim or actionthereof, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to be entitled to participate in the defense of such claim or action, with counsel of its own choice, but the indemnifying party shall will not be obligated liable to reimburse the such indemnified party for any fees, costs and legal or other 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 action within a reasonable time after receipt of notice of such claim or actionthereof. If, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counsel reasonably acceptable to in the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous mannerparty’s reasonable judgment, (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 (E) between such indemnified party and indemnifying parties may exist in respect of such claim, the indemnified party has reasonably concluded that there may shall be one or more legal or equitable defenses available entitled to it and/or other any other indemnified party which are different from or additional to those available to participate in the defense thereof and the indemnifying party. Subject to party shall be liable for the foregoing sentence, no indemnifying party shall, fees and expenses of one but not more than one counsel for all sellers of Registrable Shares and one but not more than one counsel for the underwriters in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)actions.
(d) If the indemnification provided for in the foregoing clauses (a), (b) and (c) of this Section 11 9 is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an the indemnified party parties in respect of any losslosses, claimclaims, action, damage, liability damages or expense liabilities referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount amounts paid or payable by such indemnified party parties as a result of such losslosses, claimclaims, actiondamages or liabilities (i) as between the Corporation and the holders of Registrable Shares covered by a registration statement, damageon the one hand, liability or expense and the underwriters, on the other, in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Corporation and such holders, on the one hand, and the indemnifying party. If underwriters, on the other, from the offering of the Registrable Shares, or if such allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Corporation and such holders, on the indemnifying partyone 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 or prospectus, on the other, in such proportion as is appropriate to reflect the relative fault of the Corporation and of each such holder in connection with such statements or omissions, 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 indemnifying partyCorporation and such holders, on the one hand, and of the indemnified partyunderwriters, on the other handother, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Corporation and such holders or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified partyunderwriters. The relative fault of the Corporation, on the one hand, and of each such holder, on the other, shall also be determined by reference to, among other things, whether the untrue or alleged 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 statement, omission statement or violation. omission.
(e) The parties Corporation and the holders of Registrable Shares agree that it would not be just and equitable if contribution pursuant to this Agreement Section 9(d) were determined by pro rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method or of allocation that does not take into account of the equitable considerations referred to in this the next preceding paragraph. Notwithstanding the provisions of Section 11(d9(d). In , no event holder of Registrable Shares shall be required to contribute any amount in excess of the amount by which a Holder the total price at which the Registrable Shares of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal such holder were offered to the net proceeds (after deducting Selling Expenses) actually received public exceeds the amount of any damages that such holder has otherwise been required to pay by reason of such Holder in the sale of Registrable Securities that gives rise to such obligation to contributeuntrue or alleged untrue statement or omission or alleged omission. No indemnified party person 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 person who was not guilty of such fraudulent misrepresentation.
(e) . The provisions obligation of the holders of Registrable Shares to contribute pursuant to this Section 11 shall remain 9 is several in full force 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 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 Holdernot joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Photowatt Technologies Inc.)
Indemnification; Contribution. (a) The Company shallagrees to indemnify, to the fullest extent permitted by applicable law, indemnify and hold harmless each Holder of Registrable Securities, any its officers, directors, employees, agents and Affiliates and each Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries that controls such Holder (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 Holder or Controlling Person (each of the foregoing, a “Covered Person”Act) against any all losses, claims, actions, damages, liabilities and expenses (including attorneys’ fees and expenses, joint or severaland expenses of investigation), to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) resulting from any untrue or alleged untrue statement of a material fact contained in any registration statement, prospectus 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 to Rule 405) or any amendment thereof or supplement to or any document incorporated by reference in the samethereto, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or Act, the Exchange Act, any other similar federal or applicable state securities laws law (or any rule or regulation promulgated under such federal or any applicable state securities laws applicable to law), except insofar as the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, the Company shall not be so liable same are contained 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 information furnished in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person Holder expressly for use in therein or by such Registration Statement, Prospectus, preliminary Prospectus Holder’s failure to deliver a copy of the registration statement or free writing prospectus. This indemnity shall be in addition to prospectus or any liability amendments or supplements thereto after the Company may otherwise havehas furnished such Holder with a sufficient number of copies of the same. In connection with an Underwritten Offering, the Company shall indemnify the underwriters, their officers and directors and each Person who controls 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 in which a Holder of Registrable Securities is participating, each such Holder shall furnish to To the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by applicable law, each Holder shall indemnify and hold harmless the Company, its directors and directors, officers, employees, agents and any Affiliates and each Person who is or might be deemed to be a Controlling Person that controls the Company (within the meaning of the Securities Act) against any losses, claims, actions, damages, liabilities and expenses (including attorneys’ fees and expenses, joint or several, to which they or any and expenses of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise investigation) arising out of or are based upon (i) resulting from any untrue or alleged untrue statement of a material fact contained in the Registration Statementregistration statement, Prospectus, prospectus or preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of thereof or supplement to the same thereto or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, but, in the case of each of clauses (i) and (ii), but only to the extent that such untrue statement or alleged untrue statement, omission is contained in any information or omission or alleged omission, is made affidavit so furnished in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder shall reimburse Holder; provided that 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and severalindividual, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal limited to the net amount of proceeds (after deducting Selling Expenses) actually received by such Holder in from the sale of Registrable Securities pursuant to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveregistration statement.
(c) Any Person entitled to indemnification pursuant to this Agreement hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding indemnification (provided that the previous sentence, any failure or delay to so notify the indemnifying party give prompt notice shall not relieve the indemnifying party of its obligations under this Agreement, except impair any Person’s right to indemnification hereunder to the extent that such failure has not materially prejudiced the indemnifying party is actually party) and materially prejudiced by reason of (ii) permit such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have assume the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party defense of such claim or action, to assume, at the indemnifying party’s expense, the defense of any such claim or action, with counsel reasonably acceptable satisfactory to the indemnified party. Notwithstanding the previous indemnifying party’s rights in the prior sentence, any the indemnified party shall continue have the right to be entitled to participate in the defense of such claim or action, with counsel of employ its own choicecounsel (and one local counsel), but and the indemnifying party shall not be obligated to reimburse bear the indemnified party for any reasonable 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 action within a reasonable time after receipt of notice of such claim or action, separate counsel if (C) having assumed the defense of such claim or 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, (Di) the use of counsel chosen by the indemnifying party to represent the indemnified party would in the reasonable judgment of the indemnified party present such counsel with a conflict of interest interest; (ii) the actual or (E) potential defendants in, or targets of, any such action include both the indemnified party has reasonably concluded that there may be one or more and the indemnifying party and, based on advice of counsel to the indemnified party, the indemnified party shall have legal or equitable defenses available to it and/or other any other indemnified party which parties that are different from inconsistent with or additional in addition to those available to the indemnifying party. Subject ; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the foregoing sentence, no indemnified party to represent the indemnified party within a reasonable time after written notice of the institution of such action has been delivered to the indemnifying party; or (iv) the indemnifying party shall have requested the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. The If such defense is assumed, the indemnifying party shall not have be subject to any liability for any settlement made by the right to settle a indemnified party without its consent (but such consent shall not be unreasonably withheld). No indemnifying party, in the defense of any such claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without litigation, shall, except with the consent of the each indemnified party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement compromise that does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified partytherein, in form and substance reasonably satisfactory 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 under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)litigation.
(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, director or controlling Person of such indemnified party and shall survive the Transfer of Registrable Securities.
(e) If the indemnification provided for in required by this Section 11 6 from the indemnifying party is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an indemnified party hereunder in respect of any losslosses, claimclaims, actiondamages, damage, liability liabilities or expense expenses referred to in this Section 11, then the applicable 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party under this Agreementparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability liabilities or expense expenses in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, fault of the indemnifying party shall contribute to such amount and indemnified parties in connection with the actions which resulted in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying partylosses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of the such indemnifying party, on the one hand, party and of the indemnified party, on the other hand, parties shall be determined by reference to, among other things, whether the untrue any violation referred to in this Section 6 has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party or by the indemnified partyparties, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, 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 6(a) and Section 6(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 Agreement Section 6(e) were determined by a pro rata allocation or by any other method or of allocation that which does not take into account the equitable considerations referred to in this Section 11(d6(e)(i). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party Person 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. (ai) The Company shall, to the fullest extent permitted by law, will indemnify and hold harmless each Holder 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, holder and each other Personaffiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, if any, who acts on behalf of or controls under any such Holder Blue Sky Law or Controlling Person (each of the foregoing, a “Covered Person”) regulation against any losses, claims, actions, damages, liabilities and expensesor liabilities, joint or several, to which such Covered Person holder may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statementpreliminary prospectus, Prospectusregistration statement, preliminary Prospectusprospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto, or any document incorporated by reference in arise out of or are based upon the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company misleading, and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall will reimburse each Covered Person such holder and affiliate for any legal or other expenses reasonably incurred by such Covered Person holder in connection with investigating, investigating or defending or settling any such lossaction or claim regardless of the negligence of any such holder or affiliate; provided, claimhowever, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable in any such case to the extent that any such loss, claim, action, damage, or liability or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omission, omission made or incorporated by reference in any such Registration Statementpreliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any such amendment or supplement to or any document incorporated by reference in the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by any such Covered Person holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(bii) In connection with any registration in which a Holder Each holder of Registrable Securities is participating, each such Holder shall furnish Common Stock registered pursuant to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, this Agreement will indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person Company against any losses, claims, actions, damages, or liabilities and expenses, joint or several, to which they or any of them the Company may become subject subject, under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement thereto, or arise out of or supplement to are based upon the same or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butin each case to the extent, in the case of each of clauses (i) and (ii), but only to the extent extent, that such untrue statement or alleged untrue statement, statement or omission or alleged omission, is omission was made in such Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havetherein.
(ciii) Any Person entitled Promptly after receipt by an indemnified party under Sections 4(d)(i) or (ii) above of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to indemnification pursuant to this Agreement shall give prompt written notice to be made against the indemnifying party under either such subsection, notify the indemnifying party in writing of any claim with respect the commencement thereof; but the omission so to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so 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 its obligations under this Agreement, 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 pursuant to this Agreement is brought against an indemnified party, commencement thereof 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, assume the defense of any such claim or action, with counsel reasonably acceptable thereof by notice in writing to the indemnified party. Notwithstanding After notice from the previous sentence, any indemnifying party to such indemnified party shall continue of its election to be entitled to participate in assume the defense of such claim or actionthereof, with counsel of its own choice, but the indemnifying party shall not be obligated liable to reimburse the such indemnified party under either of such subsections for any feeslegal expenses of other counsel or any other expense, costs and expenses in each case subsequently incurred by the such indemnified party party, in connection with such the defense unless (A) thereof other than reasonable costs of investigation incurred prior to the assumption by the indemnifying party has agreed party, unless such expenses have been specifically authorized in writing to pay such feesby the indemnifying party, costs and expenses, (B) the indemnifying party has failed to assume the defense and 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 claim or action within a reasonable time after receipt of notice indemnified party has been advised by counsel that the representation of such claim or action, (C) having assumed the defense of such claim or action, indemnified party and the indemnifying party fails by the same counsel would be inappropriate due to employ actual or potential differing interests between them, in each of which cases the fees of counsel reasonably acceptable to for the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen will be paid by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(div) If the indemnification provided for in this Section 11 4(d) is held by a court of competent jurisdiction unavailable or insufficient to be unavailable to, or unenforceable by, hold harmless an indemnified party under Section 4(d)(i) or (ii) in respect of any losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or action in respect thereof) referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company and the indemnifying partyholder or holders from this Agreement and from the offering of the shares of Common Stock. If If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, the 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 the such relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Company and the indemnifying partyholders in connection with the statement or omissions that resulted in such losses, claims, damages, or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Agreement Section 4(d)(iv) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method or of allocation that does not take into account the equitable considerations referred to above in this subsection 4(d)(iv). Except as provided in Section 4(d)(iii), the amount paid or payable by an indemnified party as a result of the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above in this Section 11(d). In no event 4(d)(iv) shall the amount which a Holder of Registrable Securities may be obligated deemed to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received include any legal or other expenses reasonably incurred by such Holder indemnified party in the sale of Registrable Securities that gives rise to connection with investigation or defending any such obligation to contributeaction or claim. No indemnified party person 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 person who was not guilty of such fraudulent misrepresentation. Notwithstanding any provision in this Section 4(d)(iv) 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.
(ev) The provisions obligations of the Company under this Section 11 4(d) shall remain be in full force and effect regardless of addition to any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party liability that the Company may otherwise have and shall survive extend, upon the Transfer same terms and conditions, to each person, if any, who controls any holder of Warrants within the meaning of the Securities Act. The obligations of the holders of Common Stock under this Section 4(d) shall be in addition to any Registrable 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 Securities by any HolderAct.
Appears in 1 contract
Sources: Domain Registrar Project Completion Agreement (Fullnet Communications Inc)
Indemnification; Contribution. (a) The Company shall, agrees to the fullest extent permitted by law, indemnify and hold harmless (i) the Holder, (ii) each Holder of Registrable Securities, any other Person who is participates as an underwriter in the offering or might be deemed to be a “controlling sale of such securities, (iii) each person” of the Company or any of its subsidiaries , if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act) the Holder or underwriter (each such Person, any of the persons referred to in this clause (iii) being hereinafter referred to as a “Controlling Person”), their "controlling person") and (iv) the respective direct and indirect general and limited partners, advisory board membersofficers, directors, officers, trustees, managers, memberspartners, employees, agents, Affiliates representatives and shareholders, and each other Person, if any, who acts on behalf agents of or controls any such the Holder or Controlling Person underwriter or any controlling person (each of any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the foregoingfullest extent lawful, a “Covered Person”) from and against any and all losses, claims, actions, damages, liabilities and liabilities, judgments or expenses, joint or severalseveral (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such Covered indemnified Person may become subject under either Section 15 of the Securities Act, Act or Section 20 of the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus Statement or Prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto), or any document incorporated by reference in the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged a violation by the Company of the Securities Act or any other similar federal or state securities laws law, or any rule or regulation promulgated under such federal the Securities Act or any state securities laws law, or any other law applicable to the Company and relating to any action such registration or inaction required of the Company in connection with any registration of securities. In additionqualification, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, except insofar as such losses, claims, actions, damages, liabilities liabilities, judgments or expenses arise out of any such indemnified Person; (x) are caused by any such untrue statement or are based upon (i) any untrue omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of a material fact contained in any of such indemnified Person expressly for use therein; (y) with respect to the Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under result from the fact that the Holder sold Securities Act to a person to whom there was not sent or any successor rule to Rule 405) given, at or any amendment of or supplement prior to the same or (ii) any omission or alleged omission written confirmation of such sale, a material fact required to be stated in such Registration Statement, copy of the Prospectus, preliminary Prospectus as amended or free writing prospectus or necessary to make supplemented, if the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only Company shall have previously furnished copies thereof to the extent that Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or alleged untrue statementomission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Blackout Notice or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to a notice from the Company of the existence of any fact of the kind described in Section 2.4(b)(iv), the indemnified Person or the Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder shall reimburse the Company, its directors and officers, employees, agents and on behalf of any indemnified 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to survive the net proceeds (after deducting Selling Expenses) actually received transfer of such securities by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders In case any action shall be brought or asserted against any of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim indemnified Persons with respect to which it seeks indemnification. Notwithstanding indemnity may be sought against the previous sentenceCompany, any failure or delay to so such indemnified Person shall promptly notify the indemnifying party Company and the Company shall not relieve assume the indemnifying party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delaydefense thereof. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an Such indemnified party, the indemnifying party shall be entitled to participate in and Person shall have the right, exercisable by giving written notice right 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 employ separate counsel in any such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to be entitled action and to participate in the defense of such claim or action, with counsel of its own choicethereof, but the indemnifying party fees and expenses of such counsel shall not be obligated to reimburse at the expense of the indemnified party for any fees, costs and expenses subsequently incurred Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the indemnified party in connection with such defense unless Company, (Aii) the indemnifying party has agreed in writing to pay such fees, costs and expenses, (B) the indemnifying party has Company shall have failed to 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 action, the indemnifying party fails to and employ counsel reasonably acceptable or (iii) the named parties to any such action (including any implied parties) include both the indemnified party or to pursue Person and the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by the indemnifying party to represent Company and the indemnified party would present such Person shall have been advised in writing by its counsel with a conflict of interest 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 Company (in which case the Company shall not have the right to assume the foregoing sentencedefense of such action on behalf of the indemnified Person), no indemnifying party shallit being understood, however, that the Company shall not, in connection with any one claim or such action or separate but substantially similar or related actions in the same jurisdiction or proceedings arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees, costs reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified partiesPersons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. The indemnifying party Company shall not have be liable for any settlement of any such action or proceeding effected without the right Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to settle a claim or action for which indemnify and hold harmless any indemnified party is entitled to indemnification pursuant to this Agreement without 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 partyPerson, The indemnifying party shall not settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any judgment pending or enter into threatened action, claim, litigation or agree to proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any settlement relating to such claim or action indemnified Person is a party thereto), unless such judgment settlement, compromise, consent or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and termination includes as an unconditional term release of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement to such each indemnified party, in form and substance reasonably satisfactory to such indemnified party, of a full and final release Person from all liability arising out of such action, claim litigation or proceeding.
(b) The Holder agrees 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) with respect to actions based on information relating to the Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Holder from the sale or other disposition of its Restricted 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 the Holder, such claim or action. The indemnifying party Holder shall have the rights and duties given the Company in Section 2.8(a) (except that the Holder may but shall not be liable under this Agreement for any amount paid required to assume the defense thereof), and the Company or payable its directors or incurred pursuant officers or such controlling person shall have the rights and duties given to or in connection with any judgment entered or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayedHolder by Section 2.8(a).
(dc) If the indemnification provided for in this Section 11 2.8 is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an indemnified party under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losslosses, claimclaims, actiondamages, damageliabilities, liability judgments or expense expenses referred to in this Section 11therein, then the each applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreementparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims damages, actionliabilities, damage, liability judgments or expense expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company on the one hand and the indemnifying party. If Holder on the other hand from sale of Restricted Securities or (ii) if such allocation provided by the preceding sentence clause (i) above is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence clause (i) above but also the relative fault of the indemnified party Company and the indemnifying partyHolder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, Company on the one hand, hand and of the indemnified party, Holder on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Company or by the indemnified party, whether Holder and the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties amount paid 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 2.8(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and the Holder agree that it would not be just and equitable if contribution pursuant to this Agreement Section 2.8(c) were determined by pro rata allocation or by any other method or of allocation that which does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d). In no event 2.8(c) the Holder (and its related indemnified Persons) shall not be required to contribute, in the aggregate, any amount in excess of the amount by which a Holder the dollar amount of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in upon the sale of Registrable the Restricted Securities that gives rise exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such obligation to contributeuntrue statement or omission or alleged omission. No indemnified party person guilty or liable of fraudulent misrepresentation misrepresentations (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 indemnity, and contribution provisions of contained in this Section 11 shall remain 2.8 are in full force and effect regardless of addition to any investigation made by or on behalf of any liability which the indemnifying person may otherwise have to the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the Transfer of any Registrable Securities by any Holderpersons referred to above.
Appears in 1 contract
Sources: Registration Rights Agreement (Wasteco Ventures LTD)
Indemnification; Contribution. (a) The Company shall, to the fullest extent permitted by law, will indemnify and hold harmless each Holder 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, holder and each other Personaffiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, if any, who acts on behalf of or controls under any such Holder Blue Sky Law or Controlling Person (each of the foregoing, a “Covered Person”) regulation against any losses, claims, actions, damages, liabilities and expensesor liabilities, joint or several, to which such Covered Person holder may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statementpreliminary prospectus, Prospectusregistration statement, preliminary Prospectusprospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto, or any document incorporated by reference in arise out of or are based upon the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company misleading, and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall will reimburse each Covered Person such holder and affiliate for any legal or other expenses reasonably incurred by such Covered Person holder in connection with investigating, investigating or defending or settling any such lossaction or claim regardless of the negligence of any such holder or affiliate; provided, claimhowever, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable in any such case to the extent that any such loss, claim, action, damage, or liability or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omission, omission made or incorporated by reference in any such Registration Statementpreliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any such amendment or supplement to or any document incorporated by reference in the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by any such Covered Person holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder Each holder of Registrable Securities is participating, each such Holder shall furnish Common Stock registered pursuant to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, this Agreement will indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person Company against any losses, claims, actions, damages, or liabilities and expenses, joint or several, to which they or any of them the Company may become subject subject, under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement thereto, or arise out of or supplement to are based upon the same or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.in
(c) Any Person entitled Promptly after receipt by an indemnified party under Sections 8(a) or (b) above of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to indemnification pursuant to this Agreement shall give prompt written notice to be made against the indemnifying party under either such subsection, notify the indemnifying party in writing of any claim with respect the commencement thereof; but the omission so to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so 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 its obligations under this Agreement, 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 pursuant to this Agreement is brought against an indemnified party, commencement thereof 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, assume the defense of any such claim or action, with counsel reasonably acceptable thereof by notice in writing to the indemnified party. Notwithstanding After notice from the previous sentence, any indemnifying party to such indemnified party shall continue of its election to be entitled to participate in assume the defense of such claim or actionthereof, with counsel of its own choice, but the indemnifying party shall not be obligated liable to reimburse the such indemnified party under either of such subsections for any feeslegal expenses of other counsel or any other expense, costs and expenses in each case subsequently incurred by the such indemnified party party, in connection with such the defense unless (A) thereof other than reasonable costs of investigation incurred prior to the assumption by the indemnifying party has agreed party, unless such expenses have been specifically authorized in writing to pay such feesby the indemnifying party, costs and expenses, (B) the indemnifying party has failed to assume the defense and 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 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 action, indemnified party and the indemnifying party fails by the same counsel would be inappropriate due to employ actual or potential differing interests between them, in each of which cases the fees of counsel reasonably acceptable to for the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen will be paid by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 8 is held by a court of competent jurisdiction unavailable or insufficient to be unavailable to, or unenforceable by, hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or action in respect thereof) referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company and the indemnifying partyholder or holders from this Agreement and from the offering of the shares of Common Stock. If If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, the 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 the such relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Company and the indemnifying partyholders in connection with the statement or omissions that resulted in such losses, claims, damages, or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Agreement Section 8(d) were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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.determined
(e) The provisions obligations of the Company under this Section 11 8 shall remain be in full force and effect regardless of addition to any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party liability that the Company may otherwise have and shall survive extend, upon the Transfer 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 8 shall be in addition to any Registrable Securities by any Holderliability 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 (Grand Adventures Tour & Travel Publishing Corp)
Indemnification; Contribution. (a) The Company shall, agrees to the fullest extent permitted by law, indemnify and hold harmless (i) the Holder, (ii) each Holder of Registrable Securities, any other Person who is participates as an underwriter in the offering or might be deemed to be a “controlling sale of such securities, (iii) each person” of the Company or any of its subsidiaries , if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act) the Holder or underwriter (each such Person, any of the persons referred to in this clause (iii) being hereinafter referred to as a “Controlling Person”), their "controlling person") and (iv) the respective direct and indirect general and limited partners, advisory board membersofficers, directors, officers, trustees, managers, memberspartners, employees, agents, Affiliates representatives and shareholders, and each other Person, if any, who acts on behalf agents of or controls any such the Holder or Controlling Person underwriter or any controlling person (each of any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the foregoingfullest extent lawful, a “Covered Person”) from and against any and all losses, claims, actions, damages, liabilities and liabilities, judgments or expenses, joint or severalseveral (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such Covered indemnified Person may become subject under either Section 15 of the Securities Act, Act or Section 20 of the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses Claims arise out of or are based upon (i) upon, or are caused by any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus Statement or Prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto), or any document incorporated by reference in the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged a violation by the Company of the Securities Act or any other similar federal or state securities laws law, or any rule or regulation promulgated under such federal the Securities Act or any state securities laws law, or any other law applicable to the Company and relating to any action such registration or inaction required of the Company in connection with any registration of securities. In additionqualification, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, except insofar as such losses, claims, actions, damages, liabilities liabilities, judgments or expenses arise out of any such indemnified Person; (x) are caused by any such untrue statement or are based upon (i) any untrue omission or alleged untrue statement or omission that is based upon information relating to such indemnified Person furnished in writing to the Company by or on behalf of a material fact contained in any of such indemnified Person expressly for use therein; (y) with respect to the Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under result from the fact that the Holder sold Securities Act to a person to whom there was not sent or any successor rule to Rule 405) given, at or any amendment of or supplement prior to the same or (ii) any omission or alleged omission written confirmation of such sale, a material fact required to be stated in such Registration Statement, copy of the Prospectus, preliminary Prospectus as amended or free writing prospectus or necessary to make supplemented, if the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only Company shall have previously furnished copies thereof to the extent that Holder in accordance with this Agreement and said Prospectus, as amended or supplemented, would have corrected such untrue statement or alleged untrue statementomission; or (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Blackout Notice or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to a notice from the Company of the existence of any fact of the kind described in Section 2.4(b)(iv), the indemnified Person or the Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder shall reimburse the Company, its directors and officers, employees, agents and on behalf of any indemnified 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to survive the net proceeds (after deducting Selling Expenses) actually received transfer of such securities by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders In case any action shall be brought or asserted against any of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim indemnified Persons with respect to which it seeks indemnification. Notwithstanding indemnity may be sought against the previous sentenceCompany, any failure or delay to so such indemnified Person shall promptly notify the indemnifying party Company and the Company shall not relieve assume the indemnifying party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delaydefense thereof. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an Such indemnified party, the indemnifying party shall be entitled to participate in and Person shall have the right, exercisable by giving written notice right 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 employ separate counsel in any such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to be entitled action and to participate in the defense of such claim or action, with counsel of its own choicethereof, but the indemnifying party fees and expenses of such counsel shall not be obligated to reimburse at the expense of the indemnified party for any fees, costs and expenses subsequently incurred Person unless (i) the employment of such counsel shall have been specifically authorized in writing by the indemnified party in connection with such defense unless Company, (Aii) the indemnifying party has agreed in writing to pay such fees, costs and expenses, (B) the indemnifying party has Company shall have failed to 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 action, the indemnifying party fails to and employ counsel reasonably acceptable or (iii) the named parties to any such action (including any implied parties) include both the indemnified party or to pursue Person and the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by the indemnifying party to represent Company and the indemnified party would present such Person shall have been advised in writing by its counsel with a conflict of interest 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 Company (in which case the Company shall not have the right to assume the foregoing sentencedefense of such action on behalf of the indemnified Person), no indemnifying party shallit being understood, however, that the Company shall not, in connection with any one claim or such action or separate but substantially similar or related actions in the same jurisdiction or proceedings arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees, costs reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified partiesPersons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. The indemnifying party Company shall not have be liable for any settlement of any such action or proceeding effected without the right Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to settle a claim or action for which indemnify and hold harmless any indemnified party is entitled to indemnification pursuant to this Agreement without 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 partyPerson, The indemnifying party shall not settle or compromise or consent to the entry of judgment on or otherwise seek to terminate any judgment pending or enter into threatened action, claim, litigation or agree to proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any settlement relating to such claim or action indemnified Person is a party thereto), unless such judgment settlement, compromise, consent or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and termination includes as an unconditional term release of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement to such each indemnified party, in form and substance reasonably satisfactory to such indemnified party, of a full and final release Person from all liability arising out of such action, claim litigation or proceeding.
(b) The Holder agrees 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) with respect to actions based on information relating to the Holder furnished in writing by or on behalf of such Holder expressly for use in any Registration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Holder from the sale or other disposition of its Restricted 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 the Holder, such claim or action. The indemnifying party Holder shall have the rights and duties given the Company in Section 2.8(a) (except that the Holder may but shall not be liable under this Agreement for any amount paid required to assume the defense thereof), and the Company or payable its directors or incurred pursuant officers or such controlling person shall have the rights and duties given to or in connection with any judgment entered or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayedHolder by Section 2.8(a).
(dc) If the indemnification provided for in this Section 11 2.8 is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an indemnified party under Section 2.8(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any losslosses, claimclaims, actiondamages, damageliabilities, liability judgments or expense expenses referred to in this Section 11therein, then the each applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreementparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims damages, actionliabilities, damage, liability judgments or expense expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company on the one hand and the indemnifying party. If Holder on the other hand from sale of Restricted Securities or (ii) if such allocation provided by the preceding sentence clause (i) above is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence clause (i) above but also the relative fault of the indemnified party Company and the indemnifying partyHolder in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, judgments or expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, Company on the one hand, hand and of the indemnified party, Holder on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Company or by the indemnified party, whether Holder and the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties amount paid 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 2.8(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and the Holder agree that it would not be just and equitable if contribution pursuant to this Agreement Section 2.8(c) were determined by pro rata allocation or by any other method or of allocation that which does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 11(d). In no event 2.8(c) the Holder (and its related indemnified Persons) shall not be required to contribute, in the aggregate, any amount in excess of the amount by which a Holder the dollar amount of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in upon the sale of Registrable the Restricted Securities that gives rise exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such obligation to contributeuntrue statement or omission or alleged omission. No indemnified party person guilty or liable of fraudulent misrepresentation misrepresentations (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 indemnity, and contribution provisions of contained in this Section 11 shall remain 2.8 are in full force and effect regardless of addition to any investigation made by or on behalf of any liability which the indemnifying person may otherwise have to the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the Transfer of any Registrable Securities by any Holderpersons referred to above.
Appears in 1 contract
Sources: Registration Rights Agreement (Commodore Environmental Services Inc /De/)
Indemnification; Contribution. (a) The Company shall, to the fullest extent permitted by law, will indemnify and hold harmless each Holder 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, holder and each other Personaffiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, if any, who acts on behalf of or controls under any such Holder Blue Sky Law or Controlling Person (each of the foregoing, a “Covered Person”) regulation against any losses, claims, actions, damages, liabilities and expensesor liabilities, joint or several, to which such Covered Person holder may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, damages or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statementpreliminary prospectus, Prospectusregistration statement, preliminary Prospectusprospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto, or any document incorporated by reference in arise out of or are based upon the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company misleading, and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall will reimburse each Covered Person such holder and affiliate for any legal or other expenses reasonably incurred by such Covered Person holder in connection with investigating, investigating or defending or settling any such lossaction or claim regardless of the negligence of any such holder or affiliate; provided, claimhowever, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable in any such case to the extent that any such loss, claim, action, damage, or liability or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omission, omission made or incorporated by reference in any such Registration Statementpreliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any such amendment or supplement to or any document incorporated by reference in the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by any such Covered Person holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder Each holder of Registrable Securities is participating, each such Holder shall furnish Common Stock registered pursuant to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, this Agreement will indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person Company against any losses, claims, actions, damages, damages or liabilities and expenses, joint or several, to which they or any of them the Company may become subject subject, under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement thereto, or arise out of or supplement to are based upon the same or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butin each case to the extent, in the case of each of clauses (i) and (ii), but only to the extent extent, that such untrue statement or alleged untrue statement, statement or omission or alleged omission, is omission was made in such Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havetherein.
(c) Any Person entitled Promptly after receipt by an indemnified party under Sections 8(a) or (b) above of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to indemnification pursuant to this Agreement shall give prompt written notice to be made against the indemnifying party under either such subsection, notify the indemnifying party in writing of any claim with respect the commencement thereof; but the omission so to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so 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 its obligations under this Agreement, 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 pursuant to this Agreement is brought against an indemnified party, commencement thereof 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, assume the defense of any such claim or action, with counsel reasonably acceptable thereof by notice in writing to the indemnified party. Notwithstanding After notice from the previous sentence, any indemnifying party to such indemnified party shall continue of its election to be entitled to participate in assume the defense of such claim or actionthereof, with counsel of its own choice, but the indemnifying party shall not be obligated liable to reimburse the such indemnified party under either of such subsections for any feeslegal expenses of other counsel or any other expense, costs and expenses in each case subsequently incurred by the such indemnified party party, in connection with such the defense unless (A) thereof other than reasonable costs of investigation incurred prior to the assumption by the indemnifying party has agreed party, unless such expenses have been specifically authorized in writing to pay such feesby the indemnifying party, costs and expenses, (B) the indemnifying party has failed to assume the defense and 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 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 action, indemnified party and the indemnifying party fails by the same counsel would be inappropriate due to employ actual or potential differing interests between them, in each of which cases the fees of one counsel reasonably acceptable to (together with appropriate local counsel) for the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen will be paid by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 foregoing sentence, In no event shall any indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement for any amount amounts paid or payable or incurred pursuant to or in connection with settlement of any judgment entered or settlement effected with the consent of an indemnified party action unless the indemnifying party has also consented to such judgment or settlement (shall have approved the terms of the settlement; provided, however, that such consent or approval shall not to unreasonably be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 8 is held by a court of competent jurisdiction unavailable or insufficient to be unavailable to, or unenforceable by, hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any losslosses, claimclaims, action, damage, liability damages or expense liabilities (or action in respect thereof) referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, action, damage, liability damages or expense liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company and the indemnifying partyholder or holders from this Agreement and from the offering of the shares of Common Stock. If If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, the 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 the such relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Company and the indemnifying partyholders in connection with the statement or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Agreement Section 8(d) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method or of allocation that does not take into account the equitable considerations referred to above in this subsection (e). Except as provided in Section 8(c), the amount paid or payable by an indemnified party as a result of the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above in this Section 11(d). In no event 8(d) shall the amount which a Holder of Registrable Securities may be obligated deemed to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received include any legal or other expenses reasonably incurred by such Holder indemnified party in the sale of Registrable Securities that gives rise to connection with investigation or defending any such obligation to contributeaction or claim. No indemnified party person 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 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 provisions obligations of the Company under this Section 11 8 shall remain be in full force and effect regardless of addition to any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party liability that the Company may otherwise have and shall survive extend, upon the Transfer 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 8 shall be in addition to any Registrable Securities by any Holderliability 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 (Training Devices International Inc)
Indemnification; Contribution. (a) The Company shall, to the fullest extent permitted by law, indemnify and hold harmless each Holder of Registrable Securities, and any Person who which is or might be deemed to be a “controlling person” of the Company each 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”), and their respective direct and indirect general and limited partners, advisory board members, directors, officers, trustees, managers, members, employees, agents, Affiliates officers and shareholders, and each other Person, if any, who acts on behalf of or controls any such Holder or Controlling Person employees (each of the foregoing, together with such Holders, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws laws, common law 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 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 to Rule 405thereto) or any amendment thereof or supplement to thereto or any document incorporated by reference in the sametherein, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact in the same not misleading information conveyed by the Company to any purchaser at the time of the sale to such purchaser, or the omission or alleged omission to state therein a material fact required to be stated therein or (iiiiv) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, and the Company shall reimburse each such Covered Person Persons for any legal or other documented expenses (including counsel fees) reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability. Notwithstanding the previous sentence; provided that, subject to Section 11(c), 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 to thereto or any document incorporated by reference in the same therein in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectustherein. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In Subject to Section 11(c), in connection with any registration in which a Holder of Registrable Securities is participating, each such Holder e& shall furnish to the Company in writing such information regarding itself and any Holder as the Company reasonably requests is required for use in connection with any such Registration Statement or Prospectus. Each Holder Prospectus and shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who which is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws laws, common law 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405thereto) or any amendment of thereof or supplement to the same thereto or any document incorporated by reference therein, or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, but, in the case of each of clauses (i) and (ii), only 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 (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement to the same 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 any Holder expressly for use in such Registration Statementtherein, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder and e& shall reimburse the Company, its directors and officers, employees, agents and any Person who which is or might be deemed to be a Controlling Person for any legal or other documented expenses (including counsel fees) reasonably incurred by them in connection with investigating, defending or settling any such loss, claim, action, damage or liability. The ; provided that the obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to of e& only and shall not exceed an amount equal to the net proceeds (after deducting Selling Expensesunderwriters’ discounts and commissions) actually received by such Holder all selling Holders in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The This indemnity agreement contained shall be in this Section 11(baddition to any liability which e& may otherwise have.
(c) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities e& hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holderse&, for all purposes of this Agreement (including Section 11(a) and (b)), the only information furnished or to be furnished by any Holder to the Company for use in any such Registration Statement Statement, Prospectus, preliminary Prospectus, free writing prospectus or Prospectus relating to the Registrable Securities any amendment thereof or in supplement thereto or any amendmentdocument incorporated by reference therein, supplement or preliminary materials associated with the same are statements specifically relating to (ai) the beneficial ownership of shares of Common Stock the Registrable Securities by such Holder and its Affiliates, Affiliates as disclosed in the section of such document entitled “Selling Stockholders” or “Principal and Selling Stockholders” and (bii) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveselling Holders.
(cd) Any Person entitled to indemnification pursuant to this Agreement hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, ; provided that any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreementhereunder, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, ; provided that any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 or to pursue the defense of such claim or action in a reasonably vigorous reasonable 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 (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 in the same jurisdiction 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 (x) have the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement hereunder without the consent of the indemnified party, The indemnifying party shall not and (y) consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action action, in each case unless such judgment or settlement (A) does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and (B) includes as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(de) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreementhereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, on the one hand, and of the indemnified party, on the other hand, in connection with the statements, omissions or violations referred to in this Section 11 which resulted in such loss, claim, action, damage, liability or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law thereunder applicable to the Company, and, Company and relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction securities was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to , and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement hereto were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d11(e). In no event shall the amount which a e& or any other Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d11(e) exceed an amount equal to the net proceeds (after deducting Selling Expensesunderwriters’ discounts and commissions) actually received by such Holder the selling Holders in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from any Person who which was not guilty of such fraudulent misrepresentation.
(ef) The provisions Indemnification similar to that specified in the preceding paragraphs of this Section 11 (with appropriate modifications) shall be given by the Company and e& with respect to any required registration or other qualification of securities under any applicable securities and state “blue sky” laws.
(g) 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 the indemnified party Person or any officer, director or controlling person Controlling Person of such indemnified party Person and shall survive the Transfer transfer of any securities and the Termination Date but only with respect to offers and sales of Registrable Securities by any Holdermade before the Termination Date or during the period following the Termination Date referred to in Section 7(i).
Appears in 1 contract
Sources: Registration Rights Agreement (Vodafone Group Public LTD Co)
Indemnification; Contribution. (a) The Company shall, to To the fullest extent permitted by law, the Company will indemnify each Holder, each of its officers, directors, members and hold harmless partners, and each Holder of Registrable Securitiesperson controlling such Holder, any Person who is with respect to which registration, qualification or might be deemed compliance has been effected pursuant to be a “this Agreement, each director and controlling person” person of the Company or any of its subsidiaries within the meaning of Section 15 and each officer of the Securities Act or Section 20 of Company who signed 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 shareholdersregistration statement, and each other Personunderwriter, if any, and each person who acts on behalf of or controls any underwriter, against all claims, losses, damages and liabilities (or actions, proceedings or settlements, if such Holder or Controlling Person (each settlements are effected with the written consent of the foregoingCompany, a “Covered Person”in respect thereof) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any prospectus, offering circular or incorporated by reference in other document (including any Registration Statementrelated registration statement, Prospectusnotification or the like) incident to any such registration, preliminary Prospectusqualification or compliance, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws the Exchange Act or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In additionsuch registration, the Company shall qualification or compliance, and will reimburse each Covered Person such Holder, each of its officers, directors, members and partners, and each person controlling such Holder, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by such Covered Person in connection with investigating, investigating and defending or settling any such claim, loss, claimdamage, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall will not be so liable in any such case to the extent that any loss, such claim, actionloss, damage, liability or expense arises out of or is based upon on any such untrue statement or alleged untrue omission made in such registration statement, prospectus, offering circular or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any other document incorporated by reference in the same in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Covered Person expressly Holder or underwriter and stated to be specifically for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to To the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify and hold harmless the Company, each of its directors directors, officers and controlling persons, and each underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of the Securities Act or the Exchange Act or the rules and regulations thereunder, each other such Holder and Other Stockholder (if and to the extent such Other Stockholder has agreed to indemnify the Holders as set forth in this clause (b)) including Registrable Securities and other securities in the securities as to which such registration, qualification or compliance is being effected, and each of their officers, employeesdirectors, agents members and any Person who is partners, and each person controlling such Holder or might be deemed to be a Controlling Person Other Stockholder, against any all claims, losses, claims, damages and liabilities (or actions, damages, liabilities and expenses, joint proceedings or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise settlements in respect thereof) arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in the Registration Statementany such registration statement, Prospectusprospectus, preliminary Prospectusoffering circular or other document, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butand will reimburse the Company and such Holders, Other Stockholders, 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 case of each of clauses (i) and (ii)extent, but only to the extent extent, that such untrue statement (or alleged untrue statement, ) or omission (or alleged omission, ) is made in such Registration Statementregistration statement, Prospectusprospectus, preliminary Prospectus, free writing prospectus offering circular or any amendment or supplement to the same other document in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder expressly and stated to be specifically for use in such Registration Statementtherein; provided, Prospectushowever, preliminary Prospectus or free writing prospectus. In addition, that the obligations of each 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) hereunder shall be individual and several, not joint and several, for each participating Holder and shall be proportional limited to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by to each such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havesecurities sold as contemplated herein.
(c) Any Person Each party entitled to indemnification pursuant to under this Agreement Section 7 (the “Indemnified Party”) shall give prompt written notice to the indemnifying party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim with respect as to which it seeks indemnification. Notwithstanding indemnity may be sought, and shall permit the previous sentenceIndemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, 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 or delay of any Indemnified Party to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party Indemnifying Party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of unless such failure or delayto notify materially adversely affects the Indemnifying Party’s ability to defend such action. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified partyNo Indemnifying 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 such claim or actionlitigation, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection except with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified partyeach Indemnified Party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, Indemnified Party of a full and final release from all liability in respect of such claim or actionlitigation. The indemnifying party Each Indemnified Party shall not furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be liable under this Agreement for any amount paid or payable or incurred pursuant to or reasonably required in connection with any judgment entered or settlement effected with the consent defense of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 11 is held 7 shall for any reason be unenforceable by a court of competent jurisdiction to be unavailable toan Indemnified Party, or unenforceable by, an indemnified party although otherwise available in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11accordance with its terms, then the applicable indemnifying partyeach Indemnifying Party shall, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of the losses, claims, damages, liabilities or expenses with respect to which such lossIndemnified Party has claimed indemnification, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnified Party on the one hand and the indemnifying partyIndemnifying Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault fault, in the case of the indemnifying partyan untrue statement, on the one handalleged untrue statement, and of the indemnified party, on the other handomission or alleged omission, shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party Indemnifying Party or the indemnified party. The relative fault shall also be determined by reference to the Indemnified Party, and such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, alleged statement, omission or violationalleged omission. The parties Company and each Holder agree that it would not be just and equitable if contribution pursuant hereto were to this Agreement were be determined by pro rata allocation or by any other method or of allocation that 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 or other expenses reasonably incurred by such Indemnified Party in this Section 11(d)connection with investigating or defending against any action or claim which is the subject hereof. In no event case, however, shall the amount which a Holder be responsible for a portion of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the contribution obligation in excess of the net proceeds (after deducting Selling Expenses) actually received by to such Holder in the sale of Registrable Securities that gives rise to such obligation to contributesecurities sold as contemplated herein. No indemnified party person 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 person who was is not guilty of such fraudulent misrepresentation.
(e) The provisions of Anything to the contrary contained in this Section 11 7 notwithstanding, (i) no Holder shall remain be liable for any indemnification or contribution in full force and effect regardless excess of the net proceeds received by it from any investigation made by or on behalf sale 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 Holderwhich has been registered hereunder and (ii) all indemnification and contribution obligations of the Holders shall be several and not joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Kenan Advantage Group Inc)
Indemnification; Contribution. (a) The Company shallagrees to indemnify, to the fullest extent permitted by law, indemnify and hold harmless each Holder holder of Registrable Securities, any its officers, directors, partners, trustees, members, managers, employees, advisors, agents and each Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries that controls such holder (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 Holder or Controlling Person (each of the foregoing, a “Covered Person”Act) against any all losses, claims, actions, damages, liabilities and expenses, joint or severalincluding attorneys’ fees and disbursements and expenses of investigation, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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) resulting from any untrue or alleged untrue statement of a material fact contained in any registration statement, prospectus 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 to Rule 405) or any amendment thereof or supplement to or any document incorporated by reference in the samethereto, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or Act, the Exchange Act, any other similar federal or applicable state securities laws law or any rule or regulation promulgated under such federal the Securities Act, the Exchange Act or any applicable state securities laws applicable to law, except insofar as the Company and relating to any action same are caused by or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, the Company shall not be so liable contained 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 information furnished in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person holder expressly for use in therein or by such Registration Statement, Prospectus, preliminary Prospectus holder’s failure to deliver a copy of the registration statement or free writing prospectus. This indemnity shall be in addition to prospectus or any liability amendments or supplements thereto after the Company may otherwise havehas furnished such holder with a sufficient number of copies of the same. In connection with an underwritten offering, the Company shall indemnify such underwriters, their officers and directors and each Person who controls 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 holder of Registrable Securities is participating, each such Holder holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement registration statement or Prospectus. Each Holder shallprospectus and, to the fullest extent permitted by law, shall indemnify and hold harmless the Company, its directors and directors, officers, employees, agents and any Affiliates and each Person who is or might be deemed to be a Controlling Person controls the Company (within the meaning of the Securities Act and the Exchange Act) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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) resulting from any untrue or alleged untrue statement of a material fact contained in the Registration Statementregistration statement, Prospectus, prospectus or preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of thereof or supplement to the same thereto or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, but, in the case of each of clauses (i) and (ii), but only to the extent that such untrue statement or alleged untrue omission is contained in any writing furnished by such holder for use in such registration statement, prospectus or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to thereto; provided that the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and severalindividual, not joint and several, for each participating Holder holder and shall be proportional to and shall not exceed an amount equal limited to the net amount of proceeds (after deducting Selling Expenses) actually received by such Holder in holder from the sale of Registrable Securities pursuant to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveregistration statement.
(c) Any Person entitled to indemnification pursuant to this Agreement hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding indemnification (provided that the previous sentence, any failure or delay to so notify the indemnifying party give prompt notice shall not relieve the indemnifying party of its obligations under this Agreement, except impair any Person’s right to indemnification hereunder to the extent that such failure has not prejudiced the indemnifying party is actually party) and materially prejudiced by reason (ii) unless in such indemnified party’s reasonable judgment (x) a conflict of interest between such failure or delay. In case a indemnified and indemnifying parties may exist with respect to such claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement 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 (y) such indemnified party of has one or more defenses to such claim or action, that are not available to assume, at the indemnifying party’s expense, the defense of any permit such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of with counsel reasonably satisfactory to the indemnified party. If such claim or action, (C) having assumed the defense of such claim or actionis assumed, the indemnifying party fails to employ counsel reasonably acceptable to shall not settle such claim unless the indemnified party is released and discharged of any liability. Whether or not such defense is assumed, the indemnifying party shall not be subject to pursue any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of such a claim or action in a reasonably vigorous manner, (D) shall not be obligated to pay the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs fees and expenses of more than one firm of attorneys (in addition to any local counsel) counsel for all parties indemnified parties. The by such indemnifying party shall not have with respect to such claim, except to the right to settle a claim or action for which extent that in the reasonable judgment of any indemnified party is entitled to indemnification pursuant to this Agreement without the consent a conflict of the indemnified party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to interest may exist between such claim or action unless such judgment or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes as an unconditional term any other of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement indemnified parties with respect 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)claim.
(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, director or controlling Person of such indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in required by this Section 11 6 from the indemnifying party is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an indemnified party hereunder in respect of any losslosses, claimclaims, actiondamages, damage, liability liabilities or expense expenses referred to in this Section 11, then the applicable 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party under this Agreementparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability liabilities or expense expenses in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, fault of the indemnifying party shall contribute to such amount and indemnified parties in connection with the actions which resulted in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying partylosses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of the such indemnifying party, on the one hand, party and of the indemnified party, on the other hand, parties shall be determined by reference to, among other things, whether the untrue any violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party or by the indemnified partyparties, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, 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 6(a) and Section 6(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 Agreement Section 6(e) were determined solely by pro rata allocation or by any other method or of allocation that which does not take into account the equitable considerations referred to in this Section 11(d6(e)(i). In no event shall ; provided, however, that with respect to any pro rata allocation, the amount which a Holder holders of Registrable Securities may included in any such registration shall be obligated deemed to contribute pursuant to this Section 11(d) exceed an amount equal to have only received the net proceeds (after deducting Selling Expenses) actually received by from such Holder in the sale holders’ sales of Registrable Securities that gives rise to in such obligation to contributeregistration. No indemnified party Person 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. (a) The Company shallTrust hereby indemnifies, to the fullest extent permitted by law, indemnify and hold harmless each Holder of Registrable SecuritiesSecurities included in any registration statement filed by the Trust and the directors, any officers, partners, employees, agents and each Person who is or might be deemed to be a “controlling person” of the Company or controls any of its subsidiaries Holder within the meaning of Section 15 of the Securities Act or Section 20 of and 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 PersonAct, if any, who acts on behalf of or controls any such Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any all losses, claims, actions, damages, liabilities (or proceedings in respect thereof) and expensesexpenses (under the Securities Act, common law and otherwise), joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 statement or alleged untrue statement of a material fact contained in any such registration statement or incorporated by reference in any Registration Statement, Prospectusprospectus, preliminary Prospectusprospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto or any document incorporated by reference relating thereto or in any filing made in connection with the sameregistration or qualification of the offering under "blue sky" or other securities laws of jurisdictions in which the Registrable Securities are offered, (ii) or any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein, in the same not misleading or (iii) any violation or alleged violation by the Company light of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated circumstances under such federal or state securities laws applicable to which they were made, not misleading, and the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company Trust shall reimburse each Covered Person such Holders for any legal or other expenses reasonably incurred by such Covered Person them in connection with investigating, investigating or defending or settling any such loss, claim, action, damage or liability. Notwithstanding the previous sentence, 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 proceeding, (ii) any such untrue statement or alleged untrue statementstatement of a material fact contained in any preliminary prospectus, if used prior to the effective date of such registration statement (unless such statement is corrected in the final prospectus and the Trust has previously furnished copies thereof to any holder of Registrable Securities seeking such indemnification and to the underwriters of the registration in question), or contained in the final prospectus (as amended or supplemented if the Trust shall have filed with the Commission any amendment thereof or supplement thereto) if used within the period during which the Trust is required to keep the registration statement to which such prospectus relates current, or the omission or alleged omissionomission to state therein a material fact necessary in order to make the statements therein in light of the circumstances under which they were made, made or incorporated by reference in not misleading; provided, however, that such indemnification shall not extend to any such Registration Statementlosses, Prospectusclaims, preliminary Prospectusdamages, free liabilities (or proceedings in respect thereof) or expenses that are caused by any untrue statement or alleged untrue statement contained in, or by any omission or alleged omission from, information furnished in writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company Trust by such Covered Person Holder in such capacity specifically and expressly for use in any such Registration Statement, Prospectus, preliminary Prospectus registration statement or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In the case of an underwritten offering pursuant to Section 3 hereof in which the registration statement covers Registrable Securities, the Trust shall enter into an underwriting agreement in customary form and substance with such underwriters and, if so requested, a contribution agreement in customary form and substance with such underwriters and shall indemnify the underwriters, their officers and directors, if any, and each person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act, to the same extent as provided in the preceding paragraph with respect to the indemnification of the Holders of Registrable Securities and to the same extent as then customary in underwriting agreements of such underwriter; provided, however, that the Trust shall not be required to indemnify any such underwriter, or any officer or director of such underwriter or any person who controls such underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is sought results from such underwriter's failure to deliver or otherwise provide a copy of the final prospectus to the Person asserting an untrue statement or omission or alleged untrue statement or omission at or prior to the written confirmation of the sale of securities to such Person, if such statement or omission was in fact corrected in such final prospectus.
(c) In connection with any registration in statement with respect to which a Holder of Registrable Securities is participating, each such Holder shall furnish to the Company Trust in writing such information regarding such Holder included in a registration statement and the intended method of distribution as shall be reasonably requested by the Company reasonably requests Trust for use in connection with any such Registration Statement registration statement or Prospectus. Each Holder shallprospectus and each of the Holders hereby indemnifies, severally but not jointly, to the fullest extent permitted by law, indemnify and hold harmless the CompanyTrust, its officers and directors and officerseach person, employeesif any, agents who controls the Trust within the meaning of Section 15 of the Securities Act and any Person who is or might be deemed to be a Controlling Person Section 20 of the Exchange Act, against any losses, claims, actions, damages, liabilities (or proceedings in respect thereof) and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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) resulting from any untrue statement 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 to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same registration statement or prospectus, or any amendment thereof or supplement thereto, not misleading; provided, buthowever, in the case of that each of clauses (i) the Holders shall be liable hereunder if and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action liability (or proceeding if in respect thereof) or expense arises out of or is based upon an untrue statement, or alleged untrue statement or omission or alleged omission, made in reliance upon and in conformity with information pertaining to such settlement Holder which is effected without requested by the consent of such Holder. The Company Trust and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to furnished in writing to the Trust by such Holders, the only information furnished or to be furnished to the Company Holder specifically and expressly for use in any Registration Statement such registration statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveprospectus.
(cd) Any Person entitled to seeking indemnification pursuant to under the provisions of this Agreement shall give prompt written Section 8 shall, promptly after receipt by such Person of notice to of the indemnifying party commencement of any action, suit, claim with respect or proceeding, notify each party against whom indemnification is to which it seeks indemnification. Notwithstanding be sought in writing of the previous sentencecommencement thereof; provided, any however, that the failure or delay so to so notify the an indemnifying party shall not relieve the indemnifying party of its obligations from any liability which it or he may have under this Agreement, Section 8 (except to the extent that it has been prejudiced in any material respect by such failure) or from any liability which the indemnifying party is actually and materially prejudiced by reason of such failure or delaymay otherwise have. In case a any such action, suit, claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement proceeding is brought against an any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in and shall have therein and, to the right, exercisable extent it or he may elect by giving written notice delivered to the indemnified party as promptly as practicable after receipt of written receiving the aforesaid notice from such indemnified party of such claim or actionparty, to assume, at the indemnifying party’s expense, assume the defense of any such claim or action, thereof with counsel reasonably acceptable satisfactory to the such indemnified party. Notwithstanding the previous sentenceforegoing, any the indemnified party shall continue have the right to employ its or his own counsel in any such case, but the fees and expenses of such counsel shall be entitled to participate at the expense of such indemnified party unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such suit, action, claim or actionproceeding, with counsel of its own choice, but (ii) the indemnifying party shall not be obligated have employed counsel (reasonably satisfactory to reimburse the indemnified party for any fees, costs and expenses subsequently incurred by the indemnified party in connection with such defense unless (Aparty) the indemnifying party has agreed in writing to pay such fees, costs and expenses, (B) the indemnifying party has failed to assume take charge of the defense of such action, suit, claim or action proceeding within a reasonable time after receipt of notice of such commencement of the action, suit, claim or actionproceeding, or (Ciii) having assumed the defense of such claim or action, the indemnifying party fails to employ counsel reasonably acceptable to the indemnified party or to pursue shall have reasonably concluded, based on the defense advice of such claim or action in a reasonably vigorous mannercounsel, (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 (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 which, if the indemnifying party and the indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party. Subject to the foregoing sentence, no indemnifying party shall, in connection with If any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances events specified in clauses (ii) or allegations(iii) of the preceding sentence shall have occurred or shall otherwise be applicable, be liable for then the fees, costs fees and expenses of more than one counsel or firm of attorneys (counsel selected by a majority in addition to interest of the indemnified parties shall be borne by the indemnifying party. If, in any local case, the indemnified party employs separate counsel) for all indemnified parties. The , the indemnifying party shall not have the right to settle a direct the defense of such action, suit, claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent proceeding on behalf of the indemnified party, The indemnifying party shall not consent . Anything in this paragraph to the 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 includes as contrary notwithstanding, an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement for the settlement of any amount paid action, suit, claim or payable proceeding effected without its prior written consent (which consent in the case of an action, suit, claim or incurred pursuant to proceeding exclusively seeking monetary relief shall not be unreasonably withheld or delayed). Such indemnification shall remain in connection with full force and effect irrespective of any judgment entered investigation made by or settlement effected with the consent on behalf of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)party.
(de) If the indemnification from the indemnifying party as provided for in this Section 11 8 is held by a court of competent jurisdiction unavailable or is otherwise insufficient to be unavailable to, or unenforceable by, hold harmless an indemnified party in respect of any losslosses, claimclaims, actiondamages, damage, liability liabilities or expense expenses referred to in this Section 11therein, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability liabilities or expense expenses in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, fault of the indemnifying party shall contribute to such amount and indemnified parties in connection with the actions which resulted in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying partylosses, as well as any other relevant equitable considerationsclaims, damages, liabilities or expenses. The relative fault of the such indemnifying party, on the one hand, and of the indemnified party, on the other hand, party shall be determined by reference to, among other things, whether the any action in question, including any untrue (or alleged untrue untrue) statement of a material fact or the omission (or alleged omission omission) to state a material fact fact, has been made, or relates to information supplied by the such indemnifying party or by the such indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statementaction. The amount paid or payable by a party as a result of the losses, omission claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8(e) hereof, any legal or violationother fees or expenses reasonably incurred by such party in connection with any such investigation or proceeding. The parties agree hereto acknowledge that it would not be just and equitable if contribution pursuant to this Agreement Section 8 were determined by pro rata allocation or by any other method or of allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contributeother than as described above. No indemnified party person 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 person who was not guilty of such fraudulent misrepresentation.
(e) The provisions of . If, however, indemnification is available under this Section 11 8, the indemnifying parties shall remain indemnify each indemnified party to the fullest extent provided in full force and effect regardless Sections 8(a) through 8(e) hereof without regard to the relative fault of any investigation made by said indemnifying party 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 Holderother equitable consideration.
Appears in 1 contract
Sources: Registration Rights Agreement (Pennsylvania Real Estate Investment Trust)
Indemnification; Contribution. (a) The Company shallshall indemnify, to the fullest extent permitted by lawApplicable Law, indemnify and hold harmless each Holder holder of Registrable Securities, its officers, directors, partners, employees and agents, if any, and each Person, if any, who controls such holder within the meaning of Section 15 of the Securities Act, against all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (under the Securities Act or common law or otherwise), joint or several, resulting from any Person who is violation by the Company of the provisions of the Securities Act or might be deemed any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus (and as amended or supplemented if amended or supplemented) or any preliminary prospectus or caused by any omission or alleged omission to state therein a material fact required to be a “controlling person” stated 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, except to the extent that such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses are caused by any untrue statement or alleged untrue statement contained in or by any omission or alleged omission from information concerning any holder furnished in writing to the Company by such holder expressly for use therein. If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any of its subsidiaries other Person pursuant to the preceding sentence. If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, the Company agrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act or Section 20 to the same extent as herein before provided with respect to the indemnification of the Exchange Act holders of Registrable Securities; provided that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus.
(b) In connection with any registration statement in which a holder of Registrable Securities is participating, each such Personholder, a “Controlling Person”)severally and not jointly, shall indemnify, to the fullest extent permitted by Applicable Law, the Company, each underwriter and their respective direct and indirect general and limited partners, advisory board membersofficers, directors, officers, trustees, managers, members, employees, employees and agents, Affiliates and shareholdersif any, and each other Person, if any, who acts on behalf controls the Company or such underwriter within the meaning of or controls any such Holder or Controlling Person (each Section 15 of the foregoingSecurities Act, a “Covered Person”) against any losses, claims, actions, damages, liabilities (or proceedings in respect thereof) and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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) resulting from any untrue statement or alleged untrue statement of a material fact contained in fact, 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 to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, (ii) any omission or alleged omission of a material fact required to be stated in the registration statement or prospectus or preliminary prospectus or any such Registration Statement, Prospectus, preliminary Prospectus amendment thereof or free writing prospectus supplement thereto or necessary to make the statements made in the same not misleading or therein (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each any prospectus, in light of clauses (ithe circumstances under which they were made) and (ii)not misleading, but only to the extent that such untrue statement is contained in or alleged untrue statement, or such omission or alleged omission, is made from information so concerning a holder furnished in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder holder expressly for use in therein; provided that such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) holder’s obligations hereunder shall be individual and several, not joint and several, for each participating Holder and shall be proportional limited to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by to such Holder in holder of the sale Registrable Securities sold pursuant to such registration statement. It is understood and agreed that the indemnification obligations of each holder of Registrable Securities pursuant to which any underwriting agreement entered into in connection with any such Registration Statement or Prospectus relates. The indemnity agreement registration statement shall be limited to the obligations contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have3.7(b).
(c) Any Person entitled to indemnification pursuant to under the provisions of this Agreement Section 3.7 shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding indemnification and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, permit such indemnifying party to assume the previous sentencedefense of such claim, any failure or delay with counsel reasonably satisfactory to the indemnified party; and if such defense is so notify the assumed, such indemnifying party shall not relieve enter into any settlement without the indemnifying consent of the indemnified party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of if such failure or delay. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement 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 settlement attributes liability to the indemnified party as promptly as practicable after receipt of written notice from and such indemnified indemnifying party of such claim shall not be subject to any liability for any settlement made without its consent (which shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article III shall so provide. In the event an indemnifying party shall not be entitled, or actionelects not, to assume, at the indemnifying party’s expense, assume the defense of any a claim, such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 pay 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs fees and expenses of more than one counsel or firm of attorneys (in addition to any local counsel) counsel for all parties indemnified parties. The by such indemnifying party shall not have the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement for claim, unless in the reasonable judgment of any amount paid or payable or incurred pursuant to or in connection with any judgment entered or settlement effected with the consent of an such indemnified party unless the indemnifying a conflict of interest may exist between such indemnified party has also consented and any other of such indemnified parties in respect to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)claim.
(d) If for any reason the indemnification provided for in this Section 11 foregoing indemnity is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11unavailable, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such the indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability liabilities or expense 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 and on the indemnifying party. If other or (ii) if the allocation provided by the preceding sentence clause (i) above is not permitted by applicable lawApplicable Law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in received by the preceding sentence indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnified indemnifying party and the indemnifying party, indemnified party as well as any other relevant equitable considerations. The relative fault of Notwithstanding the indemnifying partyforegoing, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder holder of Registrable Securities may shall be obligated required to contribute pursuant any amount in excess of the amount such holder would have been required to this pay to an indemnified party if the indemnity under Section 11(d3.7(b) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contributewas available. No indemnified party Person 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. The obligation of any Person to contribute pursuant to this Section 3.7 shall be several and not joint.
(e) The An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 11 3.7 to or for the account of the indemnified party from time to time promptly upon receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in this Section 3.7 shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party a participating holder of Registrable Securities, its officers, directors, agents or any officerPerson, director or controlling person of if any, who controls such indemnified party holder as aforesaid, and shall survive the Transfer of any Registrable Equity Securities by such holder and the termination of this Agreement for any Holderreason.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, to the fullest extent permitted by lawand it hereby agrees to, indemnify and hold harmless each Holder of Registrable Securities, any Person who is or might be deemed to be a “controlling person” of the Company or any of Participating Investor and 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 membersofficers, directors, officers, trustees, managers, members, employees, agents, Affiliates employees and shareholders, and each other Personcontrolling Persons, if any, who acts on behalf and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of or controls any such Holder or Controlling Person (each of the foregoingRegistrable Shares, a “Covered Person”) against any losses, claims, actions, damages, damages or liabilities and expenses, joint or several, to which each such Covered Person indemnified party may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwisesubject, insofar as such losses, claims, actionsdamages or liabilities, damagesor actions or proceedings in respect thereof, liabilities or expenses including any amounts paid in settlement as provided in this Agreement (collectively, Claims), arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statementregistration statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) preliminary or final prospectus contained therein, or any amendment or supplement to thereto, or any document incorporated by reference in the sametherein, (ii) or arise out of or are based upon any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein, in light of the same circumstances in which they were made, not misleading or (iii) any violation or alleged violation by misleading, and the Company of the Securities Act shall, and it hereby agrees to, reimburse each Participating Investor or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall reimburse each Covered Person underwriter for any legal or other out-of-pocket expenses reasonably incurred by such Covered Person it in connection with investigating, investigating or defending or settling any such lossClaims; provided, claimhowever, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable to any such Person 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Participating Investor or any underwriter expressly for use therein; and provided, further, that the Company will not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriter with respect to any preliminary or final prospectus contained therein, or any amendment or supplement thereto, to the extent that any Claim of such underwriter or controlling Person results from the fact that such underwriter sold Registrable Securities to a Person to whom there was not sent or given (ito the extent legally required), at or prior to the written confirmation of such sale, a copy of the final prospectus or of the final prospectus as then amended or supplemented, whichever is most recent, if the Company has previously furnished copies thereof to such underwriter.
(b) Each Participating Investor shall, and hereby agrees to (1) indemnify and hold harmless each of the Company, each other Participating Investor and their respective directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Shares, against any Claims to which each such indemnified party may become subject, insofar as such Claims arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statementsuch registration statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or supplement to the same or (ii) are based upon any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, but, in the each case of each of clauses (i) and (ii), only to the extent that such untrue statement or alleged untrue statement, statement or omission or alleged omission, is omission was made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by or on behalf of such Holder Participating Investor expressly for use in such Registration Statementtherein, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder shall and (2) reimburse the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person Company for any legal or other out-of-pocket expenses reasonably incurred by them the Company in connection with investigating, investigating or defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveClaim.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt Promptly after receipt by an indemnified party under Section 6.5(a) or Section 6.5(b) of written notice to of the commencement of any action or proceeding for which indemnification under Section 6.5(a) or Section 6.5(b) may be requested, such indemnified party shall notify the indemnifying party in writing of any claim with respect the commencement of such action or proceeding, but the omission so to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party in respect of such action or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of its obligations under this Agreementthe indemnified party to give such notice, except to the extent that and in no event shall such omission relieve the indemnifying party is actually and materially prejudiced by reason of from any other 1iability it may have to such failure or delayindemnified party. In case a claim any such action or an action that is subject or potentially subject to indemnification pursuant to this Agreement is proceeding shall be brought against any indemnified party and it shall notify an indemnified partyindemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate in and shall have the righttherein and, exercisable by giving written notice to the extent that it shall determine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party as promptly as practicable party, and, after receipt of written notice from the indemnifying party to such indemnified party of such claim or action, its election so to assume, at the indemnifying party’s expense, assume the defense of any thereof, such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 liable to reimburse the such indemnified party for any fees, costs and legal or any other expenses subsequently incurred by the such indemnified party in connection with such the defense unless (A) thereof other than reasonable costs of investigation. If there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate under applicable standards of professional conduct in the reasonable judgment of the indemnified party for the same counsel to represent both the indemnified party and the indemnifying party has agreed in writing to pay such fees, costs and expenses, (B) or if the indemnifying party has failed elects not to assume the defense of such claim or action within a reasonable time after receipt of notice of such claim or actionclaim, (C) having assumed it will not be obligated to pay the defense of such claim or 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs fees and expenses of more than one firm of attorneys (counsel for each indemnified party with respect to such claim in addition to any local counsel) each jurisdiction for all which the indemnified partiesparty reasonably determines counsel is necessary. The indemnifying party will not be subject to any liability for any settlement made without its consent, which consent shall not have the right to settle a claim or action for which any indemnified be unreasonably withheld. No indemnifying party is entitled to indemnification pursuant to this Agreement shall, without the prior written consent of the indemnified party, The indemnifying party shall not compromise or consent to the entry of any judgment or enter into or agree any settlement agreement with respect to any settlement relating to such claim action or action proceeding in respect of which indemnification is sought under Section 6.5(a) or Section 6.5(b) (whether or not the indemnified party is an actual or potential party thereto), unless such judgment compromise, consent or settlement does not impose any admission includes an unconditional release of wrongdoing or ongoing obligations on any the indemnified party and includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall litigation and does not be liable under this Agreement for any amount paid or payable or incurred pursuant to or in connection with any judgment entered or settlement effected with subject the consent of an indemnified party unless the indemnifying party has also consented to such judgment any injunctive relief or settlement (such consent not to be unreasonably withheld, conditioned or delayed)other equitable remedy.
(d) If Each Participating Investor and the Company agree that if, for any reason, the indemnification provided for in this provisions contemplated by Sections 6.5(a) or Section 11 is held by a court of competent jurisdiction 6.5(b) are unavailable to be unavailable to, or unenforceable by, are insufficient to hold harmless an indemnified party in respect of any loss, claim, action, damage, liability or expense Claims referred to in this Section 11therein (other than as a result of the provisos thereto), then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such lossClaims in such proportion as is appropriate to reflect the relative fault of and benefits derived by the indemnifying party, claimon the one hand, actionand the indemnified party, damageon the other hand, liability as well as other equitable considerations, or expense if that allocation is not permitted under applicable law then in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violationParticipating Investors. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that which does not take into account the equitable considerations referred to in this Section 11(d)paragraph. In no event The amount paid or payable by an indemnified party as a result of the Claims referred to above shall the amount which a Holder of Registrable Securities may be obligated deemed to contribute pursuant to this Section 11(d) exceed an amount equal include (subject to the net proceeds (after deducting Selling Expenseslimitations set forth in Section 6.5(c)) actually received any legal or other fees or expenses reasonably incurred by such Holder indemnified party in the sale of Registrable Securities that gives rise to connection with investigating or defending any such obligation to contributeaction, proceeding or claim. No indemnified party Person guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f11 (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. (a) The Company shallIf any Registrable Securities are included in a registration statement under this Agreement, to including a Shelf Registration:
9.1. To the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Holder of Registrable SecuritiesSelling Holder, 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 or Controlling Person (each within the meaning of the foregoingSecurities Act, a “Covered and each officer, director, partner, employee, agent and consultant of such Selling Holder and such controlling 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 such Covered Person any of the foregoing Persons may become subject under the Securities Act, the Exchange Act, any Act or other federal or state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or incorporated by reference in any Registration Statementfinal prospectus contained therein, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) amendments or any amendment or supplement to or any document incorporated by reference in the same, supplements thereto;
(ii) any The omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statementtherein, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same therein not misleading or misleading; or
(iii) any Any violation or alleged violation by the Company of the Securities Act or Act, the Exchange Act, any other similar federal or applicable state securities laws law or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to applicable state securities law; provided, however, that the same or (ii) any omission or alleged omission of a material fact indemnification required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) 8.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action liability or proceeding expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such Holder. The Company 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 the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only conformity with written information furnished or to be 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 8 shall not apply to any Registration Statement or Prospectus relating 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.
9.2. 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 the indemnification required by this 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 Securities, which consent shall not be unreasonably withheld.
9.3. Promptly after receipt by an indemnified party under this Section 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 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 amendmentother indemnifying party similarly noticed, supplement or preliminary materials associated to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the same are statements specifically relating fees and disbursements and expenses to (a) be paid by the beneficial ownership indemnifying party, if representation of shares of Common Stock 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 Holder and its Affiliates, (b) the name and address of counsel in such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation proceeding. The failure to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt deliver written notice to the indemnifying party within a reasonable time following the commencement of any claim with respect such action, if prejudicial to which it seeks indemnification. Notwithstanding the previous sentenceits ability to defend such action, any failure or delay to so notify the shall relieve such indemnifying party of any liability to the indemnified party under this Section 8 but shall not relieve the indemnifying party of its obligations under this Agreement, except any liability that it may have to the extent that the indemnifying any indemnified 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 otherwise than pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in Section 8. Any fees and shall have the right, exercisable expenses incurred by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from (including any fees and expenses incurred in connection with investigating or preparing to defend such indemnified party of such claim action or action, to assume, at the indemnifying party’s expense, the defense of any such claim or action, with counsel reasonably acceptable proceeding) shall be paid to the indemnified party. Notwithstanding , as incurred, within thirty (30) days of written notice thereof to the previous sentenceindemnifying party; provided, any however, that if it is ultimately determined that an indemnified party is not entitled to indemnification hereunder such indemnified party shall continue be obligated to be entitled repay the indemnifying 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 of such claim or action, with counsel of its own choicethereof, but the indemnifying party fees and expenses of such counsel shall not be obligated to reimburse the expenses of such indemnified party for any fees, costs and expenses subsequently incurred by the indemnified party in connection with such defense unless (Ai) the indemnifying party has agreed in writing to pay such fees, costs fees and expenses, expenses or (Bii) the indemnifying party has shall have failed to promptly assume the defense of such action, claim or action within a reasonable time after receipt of notice of proceeding or (iii) the named parties to any such action, claim or action, proceeding (Cincluding any impleaded parties) having assumed the defense of include both such claim or action, indemnified party and the indemnifying party fails to employ counsel reasonably acceptable to the party, and such indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of shall have been advised by counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 in addition to those available to the indemnifying party. Subject to party and that the foregoing sentence, no assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party shallcould 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 action proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees, costs reasonable fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all such indemnified parties. The No indemnifying party shall not have the right be liable to settle a claim or action for which any an indemnified party is entitled to indemnification pursuant to this Agreement for any settlement of any action, proceeding or claim without the written consent of the indemnified indemnifying party, The indemnifying party shall not which consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under unreasonably withheld.
9.4. If the indemnification required by this Agreement for any amount paid or payable or incurred pursuant Section 8 from the indemnifying party is unavailable to or in connection with any judgment entered or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party hereunder in respect of any losslosses, claimclaims, actiondamages, damage, liability liabilities or expense expenses referred to in this Section 11, then the applicable 8:
(i) The indemnifying party, in lieu of indemnifying such indemnified party under this Agreementparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability liabilities or expense expenses in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, fault of the indemnifying party shall contribute to such amount and indemnified parties in connection with the actions which resulted in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying partylosses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerationsthe relative benefits received by indemnifying party and indemnified parties. The relative fault of the such indemnifying party, on the one hand, party and of the indemnified party, on the other hand, parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party or by the indemnified partyparties, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or 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 8.1 and Section 8.2, 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 Agreement Section 8.4 were determined by pro rata allocation or by any other method or of allocation that which does not take into account the equitable considerations referred to in this Section 11(d8.4(i). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party Person 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 9.5. If indemnification is available under this Section 11 8, the indemnifying parties shall remain indemnify each indemnified party to the full extent provided in full force and effect regardless this Section 8 without regard to the relative fault of any investigation made by such indemnifying party or on behalf of any indemnified party or any officer, director or controlling person other equitable consideration referred to in Section 8.4.
9.6. The obligations of such indemnified party the Company and the Selling Holders of Registrable Securities under this Section 8 shall survive the Transfer completion of any offering of Registrable Securities by any Holderpursuant to a registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (National Record Mart Inc /De/)
Indemnification; Contribution. (a) The In the event of any registration of any securities of the Company shallunder the Securities Act, to the fullest extent permitted by lawCompany will, and hereby does, indemnify and hold harmless each Holder in the case of any registration statement filed pursuant to Section 2, 3 or 4 hereof, the holder of any Registrable SecuritiesSecurities covered by such registration statement, 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 directors and indirect general and limited partners, advisory board members, directors, officers, trusteeseach officer and director of each underwriter, managers, members, employees, agents, Affiliates and shareholders, each other person who participates as an underwriter in the offering or sale of such securities and each other Personperson, if any, who acts on behalf of controls such holder or controls any such Holder or Controlling Person (each underwriter within the meaning of the foregoing, a “Covered Person”) Securities Act against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person holder or any such director or officer or participating or controlling person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings or investigations in respect thereof) arise out of or are based upon (ix) any untrue statement or alleged untrue statement of a any material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 registration statement under which such securities were registered under the Securities Act Act, any preliminary prospectus (unless, with respect to the indemnification of the officers and directors of each underwriter and each other person participating as an underwriter, any such statement is corrected in a subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or any successor rule to Rule 405) summary prospectus included therein, or any amendment or supplement to thereto, or any document incorporated by reference in the sametherein, or (iiy) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iiiz) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In additionsuch registration, and the Company shall will reimburse such holder and each Covered Person such director, officer, participating person and controlling person for any legal or any other expenses reasonably incurred by such Covered Person them in connection with investigating, investigating or defending or settling any such loss, claim, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall not be so liable to any seller, director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, action, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omissionomission made in such registration statement, made or incorporated by reference in any such Registration Statementpreliminary prospectus, Prospectusfinal prospectus, preliminary Prospectussummary prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company in an instrument prepared by or under the direction of such Covered Person expressly seller, director, officer, participating person or controlling person for use in the preparation of such Registration Statementdocuments, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall which information was specifically stated to 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only to the extent that such untrue statement or alleged untrue registration statement, or omission or alleged omissionprospectus, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 offering circular or other expenses reasonably incurred by them in connection with investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This Such indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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) 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 such seller or any such director, officer, director participating person or controlling person of such indemnified party and shall survive the Transfer transfer of such securities by such seller. The Company shall agree to provide for contribution relating to such indemnity as shall be reasonably requested by any seller of Registrable Securities by any Holderor the underwriters.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, to To the fullest extent permitted by law, the Company will indemnify Diversified, each of its officers, directors, members and hold harmless partners, and each Holder of Registrable Securitiesperson controlling Diversified, any Person who is with respect to which registration, qualification or might be deemed compliance has been effected pursuant to be a “this Agreement, each director and controlling person” person of the Company or any of its subsidiaries within the meaning of Section 15 and each officer of the Securities Act or Section 20 of Company who signed 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 shareholdersRegistration Statement, and each other Personunderwriter, if any, and each person who acts on behalf of or controls any underwriter, against all claims, losses, damages and liabilities (or actions, proceedings or settlements, if such Holder or Controlling Person (each settlements are effected with the written consent of the foregoingCompany, a “Covered Person”in respect thereof) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification or the like, any amendments or supplements thereto and any documents incorporated by reference in therein) incident to any Registration Statementsuch registration, Prospectusqualification or compliance, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or the Exchange Act or any other similar federal or state applicable securities laws or other federal, state or common law or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration such registration, qualification or compliance, and will reimburse Diversified, each of securities. In additionits officers, the Company shall reimburse directors, members and partners, and each Covered Person person controlling Diversified, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by such Covered Person in connection with investigating, investigating and defending or settling any such claim, loss, claimdamage, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall will not be so liable in any such case to the extent that any loss, such claim, actionloss, damage, liability or expense arises out of or is based upon on any such untrue statement or alleged untrue omission made in such registration statement, prospectus, offering circular or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any other document incorporated by reference in the same in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by Diversified or such Covered Person expressly underwriter and stated to be specifically for use therein. Such indemnity obligation shall remain in such Registration Statement, Prospectus, preliminary Prospectus full force and effect regardless of any investigation made by or free writing prospectus. This indemnity on behalf of Diversified and shall be in addition to any liability survive the Company may otherwise havetransfer of Registrable Securities by Diversified.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to To the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, Diversified will indemnify and hold harmless the Company, each of its directors directors, officers and officerscontrolling persons, employeesand each underwriter, agents if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of the Securities Act or the Exchange Act or the rules and any Person who is or might be deemed to be a Controlling Person regulations thereunder, against any all claims, losses, claims, damages and liabilities (or actions, damages, liabilities and expenses, joint proceedings or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise settlements in respect thereof) arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in the Registration Statementany such registration statement, Prospectusprospectus, preliminary Prospectusoffering circular or other document, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butand 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 case of each of clauses (i) and (ii)extent, but only to the extent extent, that such untrue statement (or alleged untrue statement, ) or omission (or alleged omission, ) is made in such Registration Statementregistration statement, Prospectusprospectus, preliminary Prospectus, free writing prospectus offering circular or any amendment or supplement to the same other document in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder expressly Diversified and stated to be specifically for use in such Registration Statementtherein; provided, Prospectushowever, preliminary Prospectus or free writing prospectus. In addition, such Holder shall reimburse that 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) liability of Diversified hereunder shall be individual and several, not joint and several, for each participating Holder and shall be proportional limited to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in Diversified from the sale of Registrable Registered Securities as contemplated herein giving rise to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person Each party entitled to indemnification pursuant to under this Agreement Section 4 (the “Indemnified Party”) shall give prompt written notice to the indemnifying party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim with respect as to which it seeks indemnification. Notwithstanding indemnity may be sought, and shall permit the previous sentenceIndemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, 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 or delay of any Indemnified Party to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party Indemnifying Party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of unless such failure or delayto notify materially adversely affects the Indemnifying Party’s ability to defend such action. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified partyNo Indemnifying 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 such claim or actionlitigation, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection except with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified partyeach Indemnified Party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, Indemnified Party of a full and final release from all liability in respect of such claim or actionlitigation. The indemnifying party Each Indemnified Party shall not furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be liable under this Agreement for any amount paid or payable or incurred pursuant to or reasonably required in connection with any judgment entered or settlement effected with the consent defense of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 11 is held 4 shall for any reason be unenforceable or otherwise unavailable by a court of competent jurisdiction to be unavailable toan Indemnified Party, or unenforceable by, an indemnified party although otherwise available in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11accordance with its terms, then the applicable indemnifying partyeach Indemnifying Party shall, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of the losses, claims, damages, liabilities or expenses with respect to which such lossIndemnified Party has claimed indemnification, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnified Party on the one hand and the indemnifying partyIndemnifying Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault fault, in the case of the indemnifying partyan untrue statement, on the one handalleged untrue statement, and of the indemnified party, on the other handomission or alleged omission, shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party Indemnifying Party or the indemnified party. The relative fault shall also be determined by reference to the Indemnified Party, and such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, alleged statement, omission or violationalleged omission. The parties Company and Diversified agree that it would not be just and equitable if contribution pursuant hereto were to this Agreement were be determined by pro rata allocation or by any other method or of allocation that 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 this Section 11(d)connection with investigating or defending against any action or claim which is the subject hereof. In no event case, however, shall Diversified be responsible for a portion of the amount which a Holder contribution obligation in excess of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in Diversified from the sale of Registrable Securities that gives securities as contemplated herein giving rise to such obligation to contributeliability. No indemnified party person 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 person who was is not guilty of such fraudulent misrepresentation.
(e) The provisions of Anything to the contrary contained in this Section 11 4 notwithstanding, Diversified shall remain not be liable for any indemnification or contribution in full force and effect regardless excess of the net proceeds received by it from any investigation made by or on behalf sale 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 Holderwhich has been registered hereunder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to time, indemnify, defend and hold harmless, to the fullest full extent permitted by law, indemnify and hold harmless each Holder holder of Registrable Securities, any the partners, members, officers, directors, agents, representatives and employees of each of them, each Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries controls each such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Person, a “Controlling Person”Act), their respective direct and indirect general and limited the partners, advisory board members, officers, directors, officers, trustees, managers, members, employees, agents, Affiliates representatives and shareholders, employees of each such controlling person and each other Person, if any, who acts on behalf of any financial or controls any such Holder or Controlling Person investment adviser (each of the foregoingeach, a “"Covered Person”) "), to the fullest extent lawful, from and against any and all losses, claims, actions, damages, liabilities liabilities, actions or proceedings (whether commenced or threatened), costs (including costs of preparation and expensesattorneys' fees) and expenses (including expenses of investigation) (collectively, joint or several"Losses"), to which such Covered Person may become subject under the Securities Actas incurred, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) any untrue 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 or form of prospectus or in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to supplements thereto or in any document incorporated by reference in the samepreliminary prospectus, (ii) or arising out of or based upon any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in therein not misleading, except to the extent that the same not misleading arise out of or are based upon information furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (iiiii) any violation or alleged violation by the Company of the Securities Act any federal, state or any other similar federal or state securities laws or any common law rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action required of or inaction required of by the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, registration; provided that the Company shall not be so liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such case underwriters within the meaning of the Securities Act to the extent that any loss, claim, action, damage, liability or expense arises such Losses arise out of or is are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (i) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (ii) the prospectus would have corrected such untrue statement or alleged untrue statement, statement or such omission or alleged omission, and (iii) the Company has complied with its obligations under Section 3.4(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or incorporated by reference in on behalf of such Covered Person. If the public offering pursuant to any Registration Statement provided for under this ARTICLE III is made through underwriters, no action or failure to act on the part of such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished other Person pursuant to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havepreceding sentence.
(b) In connection with any registration Registration Statement in which a Holder holder of Registrable Securities is participating, each such Holder holder, or an authorized officer of 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. Each Holder shallprospectus and such holder of Registrable Securities agrees, severally and not jointly, to indemnify, defend and hold harmless to the fullest full extent permitted by law, indemnify and hold harmless the Company, its directors and directors, officers, agents, representatives and employees, agents and any each Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any controls the Company (within the meaning of them may become subject under Section 15 of the Securities Act, Act and Section 20 of the Exchange Act), any state blue sky securities lawsand the partners, any equivalent non-U.S. securities laws members, directors, officers, agents, representatives or otherwiseemployees of such controlling persons, insofar as such losses, claims, actions, damages, liabilities or expenses arise from and against all Losses arising out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the any Registration Statement, Prospectusprospectus, preliminary Prospectusor form of prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment arising out of or supplement to the same or (ii) based upon any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butto the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided that such holder of Registrable Securities shall not be liable in any such case of each of clauses (i) and (ii), only to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such untrue statement Registration Statement or alleged untrue statement, prospectus or omission amendment or alleged omission, is made supplement thereto information expressly for use in such Registration Statement, Prospectus, preliminary Prospectus, free writing Statement or prospectus or any amendment or supplement to the same in reliance uponthereto which corrected or made not misleading, and in conformity with, written information prepared and previously furnished to the Company, and the Company by failed to include such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectusinformation therein. In addition, such Holder no event shall reimburse the Company, its directors liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(btherewith) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in holder upon the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed giving rise to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveindemnification obligation.
(c) Any If any Person shall be entitled to indemnification pursuant to this Agreement indemnity hereunder (an "Indemnified Party"), such Indemnified Party shall give prompt written notice to the indemnifying party or parties from which such indemnity is sought (the "Indemnifying Parties") of the commencement of any claim action, suit, proceeding or investigation or written threat thereof (a "Proceeding") with respect to which it such Indemnified Party seeks indemnification. Notwithstanding indemnification or contribution pursuant hereto; provided that the previous sentence, any failure or delay to so notify the indemnifying party Indemnifying Parties shall not relieve the indemnifying party of its obligations under this Agreement, Indemnifying Parties from any obligation or liability except to the extent that the indemnifying party is actually and materially Indemnifying Parties have been prejudiced by reason of such failure or delayfailure. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and The Indemnifying Parties shall have the right, exercisable by giving written notice to an Indemnified Party promptly after the indemnified party as promptly as practicable after receipt of written notice from such indemnified party Indemnified Party of such claim or actionProceeding, to assume, at the indemnifying party’s Indemnifying Parties' expense, the defense of any such claim or actionProceeding, with counsel reasonably acceptable satisfactory to such Indemnified Party; provided that an Indemnified Party or Parties (if more than one such Indemnified Party is named in any Proceeding) shall have the indemnified party. Notwithstanding the previous sentence, right to employ separate counsel in any indemnified party shall continue to be entitled such Proceeding and to participate in the defense of such claim or action, with counsel of its own choicethereof, but the indemnifying party shall not be obligated to reimburse the indemnified party for any fees, costs fees and expenses subsequently incurred by of such counsel shall be at the indemnified party in connection with expense of such defense Indemnified Party or Parties unless (Ai) the indemnifying party has agreed in writing Indemnifying Parties agree to pay such fees, costs fees and expenses, (Bii) the indemnifying party has failed Indemnifying Parties fail promptly to assume the defense of such claim Proceeding or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails fail to employ counsel reasonably acceptable satisfactory to the indemnified party such Indemnified Party or to pursue the defense of such claim Parties, or action in a reasonably vigorous manner, (Diii) the use named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party or Parties and the Indemnifying Parties or an Affiliate of counsel chosen by the indemnifying party to represent the indemnified party would present Indemnifying Parties or such counsel with a conflict of interest or (E) the indemnified party has reasonably concluded that Indemnified Parties, and there may be one or more legal or equitable defenses available to it and/or other any other indemnified party which such Indemnified Party or Parties that are different from or additional to those available to the indemnifying party. Subject Indemnifying Parties, in which case, if such Indemnified Party or Parties notifies the Indemnifying Parties in writing that it elects to employ separate counsel at the foregoing sentenceexpense of the Indemnifying Parties, no indemnifying party shallthe Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one claim or action such Proceeding or separate but substantially similar or related actions Proceedings in the same jurisdiction jurisdiction, arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees, costs fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all indemnified partiessuch Indemnified Party or Parties. Whether or not such defense is assumed by the Indemnifying Parties, such Indemnifying Parties or Indemnified Party or Parties shall not be subject to any liability for any settlement made without its or their consent (but such consent shall not be unreasonably withheld). The indemnifying party shall not have the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party Indemnifying Parties shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim which (i) provides for other than monetary damages without the consent of the Indemnified Party or action unless such judgment Parties (which consent shall not be unreasonably withheld or settlement delayed) or (ii) does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified partyIndemnified Party or Parties of a release, in form and substance reasonably satisfactory to such indemnified partythe Indemnified Party or Parties, of a full and final release from all liability in respect of such claim or action. The indemnifying party shall not Proceeding for which such Indemnified Party would be liable under this Agreement for any amount paid or payable or incurred pursuant entitled to or in connection with any judgment entered or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)indemnification hereunder.
(d) If the indemnification provided for in this Section 11 3.6 is held by a court of competent jurisdiction unavailable to be unavailable to, an Indemnified Party or unenforceable by, an indemnified party is insufficient to hold such Indemnified Party harmless for any Losses in respect of any loss, claim, action, damage, liability or expense referred to in which this Section 113.6 would otherwise apply by its terms, then the each applicable indemnifying partyIndemnifying Party, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall have a joint and several obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossLosses, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnifying Party, on the one hand, and such Indemnified Party, on the indemnifying partyother hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the indemnifying partysuch Indemnifying Party, on the one hand, and of the indemnified partyIndemnified Party, on the other hand, shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the indemnifying party by, such Indemnifying Party or by the indemnified partyIndemnified Party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent any such statementaction, omission statement or violationomission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 3.6(a) or 3.6(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Agreement Section 3.6(d) were determined by pro rata allocation or by any other method or of allocation that does not take into account of the equitable considerations referred to in this Section 11(d3.6(d). In no event shall Notwithstanding the amount which provisions of this Section 3.6(d), an Indemnifying Party that is a Holder holder of Registrable Securities may shall not be obligated required to contribute pursuant to this Section 11(d) exceed an any amount equal to in excess of the amount by which the net proceeds (after deducting Selling Expenses) actually received by such Holder in Indemnifying Party exceeds the sale amount of Registrable Securities any damages that gives rise such Indemnifying Party has otherwise been required to pay by reasons of such obligation to contributeuntrue or alleged untrue statement or omission or alleged omission. No indemnified party person 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. (a) The Company shall, to the fullest extent permitted by law, will indemnify and hold harmless each Holder 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, holder and each other Personaffiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, if any, who acts on behalf of or controls under any such Holder Blue Sky Law or Controlling Person (each of the foregoing, a “Covered Person”) regulation against any losses, claims, actions, damages, liabilities and expensesor liabilities, joint or several, to which such Covered Person holder may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statementpreliminary prospectus, Prospectusregistration statement, preliminary Prospectusprospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto, or any document incorporated by reference in arise out of or are based upon the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company misleading, and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall will reimburse each Covered Person such holder and affiliate for any legal or other expenses reasonably incurred by such Covered Person holder in connection with investigating, investigating or defending or settling any such lossaction or claim regardless of the negligence of any such holder or affiliate; provided, claimhowever, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable in any such case to the extent that any such loss, claim, action, damage, or liability or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omission, omission made or incorporated by reference in any such Registration Statementpreliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any such amendment or supplement to or any document incorporated by reference in the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by any such Covered Person holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder Each holder of Registrable Securities is participating, each such Holder shall furnish Common Stock registered pursuant to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, this Agreement will indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person Company against any losses, claims, actions, damages, or liabilities and expenses, joint or several, to which they or any of them the Company may become subject subject, under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement thereto, or arise out of or supplement to are based upon the same or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butin each case to the extent, in the case of each of clauses (i) and (ii), but only to the extent extent, that such untrue statement or alleged untrue statement, statement or omission or alleged omission, is omission was made in such Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havetherein.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to Promptly after receipt by an indemnified party under Sections 8(a) or (b) above of the indemnifying party commencement of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentenceaction, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 if a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement for any amount paid or payable or incurred pursuant thereof is to or in connection with any judgment entered or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).be
(d) If the indemnification provided for in this Section 11 8 is held by a court of competent jurisdiction unavailable or insufficient to be unavailable to, or unenforceable by, hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or action in respect thereof) referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company and the indemnifying partyholder or holders from this Agreement and from the offering of the shares of Common Stock. If If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, the 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 the such relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Company and the indemnifying partyholders in connection with the statement or omissions that resulted in such losses, claims, damages, or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Agreement Section 8(d) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method or of allocation that does not take into account the equitable considerations referred to above in this subsection (e). Except as provided in Section 8(c), the amount paid or payable by an indemnified party as a result of the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above in this Section 11(d). In no event 8(d) shall the amount which a Holder of Registrable Securities may be obligated deemed to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received include any legal or other expenses reasonably incurred by such Holder indemnified party in the sale of Registrable Securities that gives rise to connection with investigation or defending any such obligation to contributeaction or claim. No indemnified party person 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 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
(e) The provisions obligations of the Company under this Section 11 8 shall remain be in full force and effect regardless of addition to any investigation made by or on behalf of any indemnified party or any officer, director or controlling person of such indemnified party liability that the Company may otherwise have and shall survive extend, upon the Transfer 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 8 shall be in addition to any Registrable Securities by any Holderliability 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 (Grand Adventures Tour & Travel Publishing Corp)
Indemnification; Contribution. (a) The Company shall, to To the fullest extent permitted by law, the Company will indemnify each Holder, each of its officers, directors, members and hold harmless partners, and each Holder of Registrable Securitiesperson controlling such Holder, any Person who is with respect to which registration, qualification or might be deemed compliance has been effected pursuant to be a “this Agreement, each director and controlling person” person of the Company or any of its subsidiaries within the meaning of Section 15 and each officer of the Securities Act or Section 20 of Company who signed 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 shareholdersregistration statement, and each other Personunderwriter, if any, and each person who acts on behalf of or controls any underwriter, against all claims, losses, damages and liabilities (or actions, proceedings or settlements, if such Holder or Controlling Person (each settlements are effected with the written consent of the foregoingCompany, a “Covered Person”in respect thereof) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any prospectus, offering circular or incorporated by reference in other document (including any Registration Statementrelated registration statement, Prospectusnotification or the like) incident to any such registration, preliminary Prospectusqualification or compliance, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws the Exchange Act or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In additionsuch registration, the Company shall qualification or compliance, and will reimburse each Covered Person such Holder, each of its officers, directors, members and partners, and each person controlling such Holder, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by such Covered Person in connection with investigating, investigating and defending or settling any such claim, loss, claimdamage, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall will not be so liable in any such case to the extent that any loss, such claim, actionloss, damage, liability or expense arises out of or is based upon on any such untrue statement or alleged untrue omission made in such registration statement, prospectus, offering circular or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any other document incorporated by reference in the same in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Covered Person expressly Holder or underwriter and stated to be specifically for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to To the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify and hold harmless the Company, each of its directors directors, officers and controlling persons, and each underwriter, if any, of the Company's securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of the Securities Act or the Exchange Act or the rules and regulations thereunder, each other such Holder and Other Stockholder (if and to the extent such Other Stockholder has agreed to indemnify the Holders as set forth in this clause (b)) including Registrable Securities and other securities in the securities as to which such registration, qualification or compliance is being effected, and each of their officers, employeesdirectors, agents members and any Person who is partners, and each person controlling such Holder or might be deemed to be a Controlling Person Other Stockholder, against any all claims, losses, claims, damages and liabilities (or actions, damages, liabilities and expenses, joint proceedings or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise settlements in respect thereof) arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in the Registration Statementany such registration statement, Prospectusprospectus, preliminary Prospectusoffering circular or other document, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butand will reimburse the Company and such Holders, Other Stockholders, 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 case of each of clauses (i) and (ii)extent, but only to the extent extent, that such untrue statement (or alleged untrue statement, ) or omission (or alleged omission, ) is made in such Registration Statementregistration statement, Prospectusprospectus, preliminary Prospectus, free writing prospectus offering circular or any amendment or supplement to the same other document in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder expressly and stated to be specifically for use in such Registration Statementtherein; provided, Prospectushowever, preliminary Prospectus or free writing prospectus. In addition, that the obligations of each 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) hereunder shall be individual and several, not joint and several, for each participating Holder and shall be proportional limited to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by to each such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havesecurities sold as contemplated herein.
(c) Any Person Each party entitled to indemnification pursuant to under this Agreement Section 7 (the "Indemnified Party") shall give prompt written notice to the indemnifying party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim with respect as to which it seeks indemnification. Notwithstanding indemnity may be sought, and shall permit the previous sentenceIndemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, 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 or delay of any Indemnified Party to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party Indemnifying Party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of unless such failure or delayto notify materially adversely affects the Indemnifying Party's ability to defend such action. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified partyNo Indemnifying 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 such claim or actionlitigation, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection except with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified partyeach Indemnified Party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, Indemnified Party of a full and final release from all liability in respect of such claim or actionlitigation. The indemnifying party Each Indemnified Party shall not furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be liable under this Agreement for any amount paid or payable or incurred pursuant to or reasonably required in connection with any judgment entered or settlement effected with the consent defense of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 11 is held 7 shall for any reason be unenforceable by a court of competent jurisdiction to be unavailable toan Indemnified Party, or unenforceable by, an indemnified party although otherwise available in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11accordance with its terms, then the applicable indemnifying partyeach Indemnifying Party shall, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of the losses, claims, damages, liabilities or expenses with respect to which such lossIndemnified Party has claimed indemnification, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnified Party on the one hand and the indemnifying partyIndemnifying Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault fault, in the case of the indemnifying partyan untrue statement, on the one handalleged untrue statement, and of the indemnified party, on the other handomission or alleged omission, shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party Indemnifying Party or the indemnified party. The relative fault shall also be determined by reference to the Indemnified Party, and such parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, alleged statement, omission or violationalleged omission. The parties Company and each Holder agree that it would not be just and equitable if contribution pursuant hereto were to this Agreement were be determined by pro rata allocation or by any other method or of allocation that 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 or other expenses reasonably incurred by such Indemnified Party in this Section 11(d)connection with investigating or defending against any action or claim which is the subject hereof. In no event case, however, shall the amount which a Holder be responsible for a portion of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the contribution obligation in excess of the net proceeds (after deducting Selling Expenses) actually received by to such Holder in the sale of Registrable Securities that gives rise to such obligation to contributesecurities sold as contemplated herein. No indemnified party person 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 person who was is not guilty of such fraudulent misrepresentation.
(e) The provisions of Anything to the contrary contained in this Section 11 7 notwithstanding, no Holder shall remain be liable for any indemnification or contribution in full force and effect regardless excess of the net proceeds received by it from any investigation made by or on behalf sale 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 Holderwhich has been registered hereunder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shallIn the event of any registration of any equity securities of the Corporation under the Securities Act or applicable Canadian securities Laws, to the fullest extent permitted by lawCorporation will, and hereby does agree to, indemnify and hold harmless harmless, in the case of any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, the seller of any Registrable Shares covered by such registration statement or prospectus, its respective directors and officers, partners and members, each Holder of Registrable Securities, any other Person who is participates as an underwriter in the offering or might be deemed to be a “controlling person” sale of the Company such securities, and each other Person, if any, who controls such seller or any of its subsidiaries such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such PersonAct, 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 Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 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 to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky applicable Canadian securities laws, any equivalent non-U.S. securities laws Laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a any material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, free writing any registration statement or prospectus (as defined in Rule 405 under which such securities were registered under the Securities Act Act, any preliminary prospectus, final prospectus included therein or any successor rule to Rule 405) filed with applicable Canadian securities regulatory authorities, or any amendment of or supplement to the same thereto, or any document incorporated by reference therein, or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading; provided, buthowever, that the Corporation shall not be liable in the any such case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, liability (or action or proceeding if in respect thereof) or expense arises out of or is based upon (x) an untrue statement or alleged untrue statement or omission or alleged omission made in such settlement is effected without the consent of registration statement, any such Holder. The Company preliminary prospectus, final prospectus or amendment or supplement thereto, in reliance upon and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only conformity with written information furnished or to be furnished to the Company Corporation for use in any Registration Statement the preparation thereof by such seller or Prospectus relating to underwriter, as the Registrable Securities case may be, or (y) an untrue statement or alleged untrue statement or omission or alleged omission made in any amendmentpreliminary prospectus but notified to such seller and underwriter prior to any sale or other disposition of Registrable Shares and subsequently corrected by the Corporation in any final prospectus, amendment or supplement made available to such seller or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock underwriter but which final prospectus, amendment or supplement was not used by such Holder and its Affiliatesseller or underwriter in the sale or other disposition of Registrable Shares that gave rise to such loss, claim, damage, liability (bor action or proceeding in respect thereof) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such documentexpense. This indemnity shall be in addition to any liability which such Holder the Corporation may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or any such director or officer, underwriter or controlling Person and shall survive the transfer of such securities by such seller.
(b) The Corporation may require, as a condition to including any Registrable Shares in any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, that the Corporation shall have received an agreement satisfactory to it from (i) the prospective seller of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 9(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 director of the Corporation and each of the Corporation's officers who signed the registration statement or prospectus, each such underwriter of such securities, and each other Person, if any, who controls the 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 9(a) above) the Corporation, each officer who signed the registration statement or prospectus and each director of the Corporation, each prospective seller, and each other Person, if any, who controls the Corporation or any such 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 preliminary prospectus, final prospectus, or any amendment or supplement thereto, if such untrue statement or omission was made in reliance upon and in conformity with written information furnished by such prospective seller or such underwriter, as the case may be, to the Corporation for use in the preparation of such registration statement, preliminary prospectus, final prospectus, amendment or supplement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Corporation or any such director, officer or controlling Person and shall survive the transfer of such securities by such seller.
(c) Any Person entitled Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding (including any governmental investigation) involving a claim referred to indemnification pursuant in either Section 9(a) above or (b) above, such indemnified party will, if a claim in respect thereof is to this Agreement shall be made against an indemnifying party, give prompt written notice to the indemnifying party latter of the commencement of such action; provided, however, that the failure of any claim with respect indemnified party to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding provisions of this AgreementSection 9, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delayto give notice. In case a claim or an any such action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have assume the rightdefense thereof, exercisable by giving written notice jointly with any other indemnifying party similarly notified, to the indemnified party as promptly as practicable extent that it may wish, and after receipt of written notice from the indemnifying party to such indemnified party of such claim or action, its election so to assume, at the indemnifying party’s expense, assume the defense of any such claim or actionthereof, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to be entitled to participate in the defense of such claim or action, with counsel of its own choice, but the indemnifying party shall will not be obligated liable to reimburse the such indemnified party for any fees, costs and legal or other 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 action within a reasonable time after receipt of notice of such claim or actionthereof. If, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counsel reasonably acceptable to in the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous mannerparty's reasonable judgment, (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 (E) between such indemnified party and indemnifying parties may exist in respect of such claim, the indemnified party has reasonably concluded that there may shall be one or more legal or equitable defenses available entitled to it and/or other any other indemnified party which are different from or additional to those available to participate in the defense thereof and the indemnifying party. Subject to the foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, shall not be liable for the fees, costs fees and expenses of more than one firm of attorneys (in addition to any local counsel) counsel for all indemnified parties. The indemnifying party shall not have sellers of Registrable Shares, or more than one counsel for the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement for any amount paid or payable or incurred pursuant to or underwriters in connection with any judgment entered one action or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment separate but similar or settlement (such consent not to be unreasonably withheld, conditioned or delayed)related actions.
(d) If the indemnification provided for in the foregoing clauses (a), (b) and (c) of this Section 11 9 is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an the indemnified party parties in respect of any losslosses, claimclaims, action, damage, liability damages or expense liabilities referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount amounts paid or payable by such indemnified party parties as a result of such losslosses, claimclaims, actiondamages or liabilities (i) as between the Corporation and the holders of Registrable Shares covered by a registration statement, damageon the one hand, liability or expense and the underwriters, on the other, in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Corporation and such holders, on the one hand, and the indemnifying party. If underwriters, on the other, from the offering of the Registrable Shares, or if such allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Corporation and such holders, on the indemnifying partyone 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 or prospectus, on the other, in such proportion as is appropriate to reflect the relative fault of the Corporation and of each such holder in connection with such statements or omissions, 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 indemnifying partyCorporation and such holders, on the one hand, and of the indemnified partyunderwriters, on the other handother, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Corporation and such holders or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified partyunderwriters. The relative fault of the Corporation, on the one hand, and of each such holder, on the other, shall also be determined by reference to, among other things, whether the untrue or alleged 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 statement, omission statement or violation. omission.
(e) The parties Corporation and the holders of Registrable Shares agree that it would not be just and equitable if contribution pursuant to this Agreement Section 9(d) were determined by pro rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method or of allocation that does not take into account of the equitable considerations referred to in this the next preceding paragraph. Notwithstanding the provisions of Section 11(d9(d). In , no event holder of Registrable Shares shall be required to contribute any amount in excess of the amount by which a Holder the total price at which the Registrable Shares of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal such holder were offered to the net proceeds (after deducting Selling Expenses) actually received public exceeds the amount of any damages that such holder has otherwise been required to pay by reason of such Holder in the sale of Registrable Securities that gives rise to such obligation to contributeuntrue or alleged untrue statement or omission or alleged omission. No indemnified party person 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 person who was not guilty of such fraudulent misrepresentation.
(e) . The provisions obligation of the holders of Registrable Shares to contribute pursuant to this Section 11 shall remain 9 is several in full force 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 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 Holdernot joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Fairfax Financial Holdings LTD/ Can)
Indemnification; Contribution. (aa.) The In the event of a registration of any of the Registrable Securities under the Securities Act pursuant to Sections 2.1, 2.2 or 2.3, the Company shall, to the fullest extent permitted by law, will indemnify and hold harmless each Holder seller of such Registrable SecuritiesSecurities thereunder, any Person who is or might be deemed to be a “controlling person” each underwriter of the Company or any of its subsidiaries within the meaning of Section 15 of the such Registrable 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, thereunder and each other Person, if any, who acts on behalf of controls such seller or controls any such Holder or Controlling Person (each underwriter within the meaning of the foregoingSecurities Act, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expensesdamages or liabilities, joint or several, to which such Covered seller, underwriter or controlling Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, damages or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a any material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 registration statement under which such Registrable Securities were registered under the Securities Act pursuant to Sections 2.1, 2.2 or 2.3, any successor rule to Rule 405) preliminary prospectus or final prospectus contained therein, or any amendment or supplement to or any document incorporated by reference in the samethereof, (ii) any the omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky or other securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as law in connection with the offering covered by such losses, claims, actions, damages, liabilities or expenses arise out of or are based upon (i) any untrue or alleged untrue registration 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 to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by will reimburse each such Holder expressly for use in seller, each such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, underwriter and each 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 controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating, investigating or defending or settling any such loss, claim, damage, liability or action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to including amounts paid in settlement thereof; provided, however, that the Company will not be liable in any such case if and to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission which occurs in reliance upon or in connection with written information furnished expressly for use in connection with such registration by any such seller, any such underwriter or any such controlling Person.
(b.) In the event of a registration of any of the Registrable Securities under the Securities Act pursuant to Sections 2.1, 2.2 or 2.3, each seller of such Registrable Securities thereunder, severally and not jointly, will indemnify and hold harmless the Company, each Person, if any, who controls the Company within the meaning of the Securities Act, each officer of the Company who signs the registration statement, each director of the Company, each underwriter and each Person who controls any underwriter within the meaning of the Securities Act, against all losses, claims, damages or liabilities, joint or several, to which the Company or such officer, director, underwriter or controlling Person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue 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 Sections 2.1, 2.2 or 2.3, 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 connection with investigating or defending any such loss, claim, damage, liability or action, provided, however, that such seller will be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such seller, any such underwriter or any such controlling person, and provided, further, however, that the liability of each seller hereunder shall be limited to the proportion of any such loss, claim, damage, liability, action liability or proceeding if such settlement expense which is effected without equal to the consent of such Holder. The Company and proportion that the Holders public offering price of the shares sold by such seller under such registration statement bears to the total public offering price of all securities sold thereunder, but not in any event to exceed the net proceeds received by such seller from the sale of Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing covered by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveregistration statement.
(cc.) Any Person entitled Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to indemnification pursuant to this Agreement shall give prompt written notice to be made against an indemnifying party hereunder, notify the indemnifying party of any claim with respect in writing thereof, but the omission so to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party shall not relieve it from any liability which it may have to such indemnified party other than under this Section 2.7 and shall only relieve it from any liability which it may have to such indemnified party under this Section 2.7 if and to the extent the indemnifying party is prejudiced by such omission. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement is brought against an indemnified partycommencement thereof, the indemnifying party shall be entitled to participate in and shall have the rightand, exercisable by giving written notice to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party as promptly as practicable party, and, after receipt of written notice from the indemnifying party to such indemnified party of such claim or action, its election so to assume, at the indemnifying party’s expense, assume and undertake the defense of any such claim or actionthereof, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 liable to reimburse the such indemnified party under this Section 2.7 for any fees, costs and legal expenses subsequently incurred by the such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected, provided, however, that, if the defendants in any such defense unless (A) action include both the indemnified party and 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 action within a reasonable time after receipt of notice of such 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 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 (E) the indemnified party has shall have reasonably concluded that there may be one or more legal or equitable reasonable 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 party or if the foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out interests of the same general circumstances or allegationsindemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, 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 select a claim or action for which any indemnified party is entitled separate counsel and to indemnification pursuant assume such legal defenses and otherwise to this Agreement without participate in the consent defense of such action, with the indemnified party, The expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or actionincurred. The indemnifying party shall not be liable under this Agreement to indemnify any indemnified party for any amount paid or payable or incurred pursuant to or in connection with settlement of any judgment entered or settlement action effected with the consent of an indemnified party unless without the indemnifying party has also consented to such judgment or settlement party’s consent (such which consent shall not to be unreasonably withheld, conditioned withheld or delayed). The indemnifying party shall not, except with the approval of each party being indemnified under this Section 2.7(c), 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 all liability in respect to such claim or litigation.
(dd.) If In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any holder of Registrable Securities exercising rights under this Agreement, or any controlling Person of any such holder, makes a claim for indemnification provided for in pursuant to this Section 11 2.7 but it is held judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be unavailable toenforced in such case notwithstanding the fact that this Section 2.7 provides for indemnification in such case, or unenforceable by, an indemnified party in respect (ii) contribution under the Securities Act may be required on the part of any loss, claim, action, damage, liability such selling holder or expense referred to any such controlling Person in circumstances for which indemnification is otherwise required under this Section 112.7; then, then and in each such case, the applicable indemnifying party, in lieu of indemnifying Company and such indemnified party under this Agreement, shall holder will contribute to the amount paid aggregate losses, claims, damages or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense liabilities to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Company on the one hand and of the indemnifying partyholder of Registrable Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable 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 the indemnifying party, Company on the one hand, hand and of the indemnified party, holder of Registrable Securities on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Company on the one hand or by the indemnified holder of Registrable Securities on the other, and each party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ ’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, however, that, in any such case, (A) no such holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered by it pursuant to such registration statement, omission or violation. The parties agree that it would but not be just and equitable if contribution pursuant in any event to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in seller from the sale of Registrable Securities that gives rise to covered by such obligation to contribute. No indemnified party registration statement; and (B) no Person guilty or liable of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act shall Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(ee.) The provisions obligations of the Company and Holders under this Section 11 2.7 shall remain in full force and effect regardless survive the completion of any investigation made by or on behalf offering of any indemnified party or any officer, director or controlling person of such indemnified party Registrable Securities in a registration statement under this Section 2 and shall survive the Transfer termination of any Registrable Securities by any Holderthis Agreement.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, Subject to the fullest extent permitted by lawterms and conditions of this Section 6.10, the Corporation shall indemnify and hold harmless (i) each Holder of Registrable SecuritiesSelling Holder, its Affiliates and any Person who is Permitted Transferee, including their respective directors, officers, employees, advisers, agents, administrators and successors and assigns with respect to any registration statement filed pursuant to this Agreement, (ii) any underwriter or might be deemed to be a “controlling person” selling agent selected by the Requesting Holders or other securities professional, if any, which facilitates the disposition of the Company Registrable Securities with respect to such Registrable Securities and (iii) each person who controls the Selling Holders or Affiliates thereof or such underwriter, selling agent or securities professional, including their respective directors, officers, employees, advisers, agents, administrators and successors and assigns, and any of its subsidiaries underwriter or selling agent, within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act (each such PersonAct, 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 Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities or expenses (each a "Loss" and expensescollectively "Losses"), joint or several, to which the Selling Holders or any such Covered Person persons may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as to the extent that such losses, claims, actions, damages, liabilities Losses (or expenses related actions or proceedings) arise out of or are based upon (iA) any untrue statement or alleged untrue statement of a material fact contained in a registration statement, offering circular or incorporated by reference other document or any amendments or supplements thereto, in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 which such Registrable Securities are to be or were included for registration under the Securities Act Act, or any successor rule to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, (ii) any omission or alleged omission of to state a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same such registration statement, offering circular or other document, as amended or supplemented, not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (iB) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus if used prior to the Registration Statementeffective date of the registration statement, Prospectus, preliminary Prospectus, free writing any final prospectus (as defined supplemented, if the Corporation shall have filed with the SEC any supplement thereto) if used during the period in Rule 405 under which the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact Corporation is required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make keep the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only to the extent that such untrue registration 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained prospectus relates current and otherwise in this compliance with Section 11(b10(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable toAct, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates required to information supplied by be stated or necessary to the indemnifying party make statements in such preliminary prospectus or by final prospectus, in the indemnified partylight of the circumstances under which such statements were made, whether the not misleading or (C) any material violation or alleged material violation of the Securities Act or any other federal or state securities law or rule or regulation Act, the Exchange Act, the rules and regulations as promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act and the Exchange Act, and state securities laws; provided, however, that the Corporation shall not be entitled liable to contribution from any Person who was not guilty and shall have no obligation to provide any indemnification hereunder to the extent any such Losses (or actions or proceedings in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such fraudulent misrepresentation.
(e) registration statement, offering circular or other document prospectus, as the case may be, in reliance upon and in conformity with written information furnished to the Corporation by a Person seeking such indemnification or on such Person's behalf specifically for inclusion in such document. The provisions of indemnity provided in this Section 11 6.10 shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party the Selling Holders or any officer, director or controlling person of such indemnified party other persons and shall survive the Transfer transfer of any the Registrable Securities by the Selling Holders or any such other persons. Notwithstanding anything provided herein to the contrary, (i) the Corporation shall not be liable in any such case to the extent that any such losses, claims, damages, liabilities or expenses arise out of or are based upon an untrue statement or omission made in any preliminary prospectus if (x) such Selling Holder or underwriter failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities, (y) the prospectus would have completely corrected such untrue statement or omission and (z) the Corporation delivered a copy of such prospectus to such Selling Holder or underwriter prior to such written confirmation of sale; and (ii) the Corporation shall not be liable in any such case to the extent that any such losses, claims, damages, liabilities or expenses arise out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission in the prospectus, if such untrue statement, omission or alleged omission is completely corrected in an amendment or supplement to the prospectus and if, having previously been furnished by or on behalf of the Corporation with copies of the prospectus as so amended or supplemented, such Selling Holder or underwriter thereafter sells Registrable Securities pursuant to the Registration Statement and fails to deliver such prospectus as so amended or supplemented, prior to or concurrently with the sale of a Registrable Security to the Person asserting such damages who purchased such Registrable Security from such Selling Holder or underwriter after such Selling Holder's or underwriter's receipt of such prospectus as so amended or supplemented by or on behalf of the Corporation.
(b) Each Selling Holder shall severally, and not jointly, indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 6.10 hereof) the Corporation, each director, officer and employee of the Corporation and each other person, if any, who controls the Corporation within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, the Corporation's investment advisers and agents, and each of their respective heirs, executors, administrators and successors and assigns, against any Losses to which such Person may become subject under the Securities Act or otherwise, to the extent that such Losses (or related actions or proceedings) arise out of or are based upon any untrue statement or alleged untrue statement in or omission or alleged omission from any registration statement filed by the Corporation pursuant to this Agreement, any prospectus included in such registration statement, any offering circular or other document or any amendment or supplement to such registration statement, prospectus, offering circular or other document, as the case may be, of a material fact if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Corporation or any of its representatives by such Selling Holder or such other Persons, if any, who control the Selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or on the Selling Holder's behalf, specifically for inclusion in such registration statement, prospectus, offering circular or other document, as the case may be; provided, such Selling Holder's aggregate liability under this Agreement shall be limited to an amount equal to the net proceeds (after deducting the underwriters' discount and the expenses incurred in connection with the applicable offering) received by the Selling Holder from its sale of securities effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding (an "Action") involving a claim referred to in Section 6.10(a) and 6.10(b), such indemnified party shall, if indemnification is sought against an indemnifying party, give written notice to the indemnifying party of the commencement of such Action; provided, however, that the failure of any indemnified party to give said notice shall not relieve the indemnifying party of its obligations under Section 6.10(a) and 6.10(b), as the case may be, except to the extent that the indemnifying party is actually and materially prejudiced by such failure. In case an Action is brought against any indemnified party, and such indemnified party notifies an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party). Notwithstanding the foregoing, the indemnified party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying party, (ii) the indemnifying party shall not have employed counsel (reasonably satisfactory to the indemnified party) to take charge of the defense of such Action, within a reasonable time after notice of the commencement thereof or (iii) such indemnified party reasonably shall have concluded that there may be defenses available to it which are different from or additional to those available to the indemnifying party or that a conflict of interest exists between the indemnified party and the indemnifying party. If any of the events specified in clauses (i), (ii) or (iii) of the preceding sentence shall have occurred or otherwise shall be applicable, then the fees and expenses of one counsel (or firm of counsel) for the indemnified party shall be borne by the indemnifying party. Anything in this Section 6.10(c) to the contrary notwithstanding, an indemnifying party shall not be liable for the settlement of any action effected without its prior written consent (which consent shall not unreasonably be withheld or delayed), but if settled with the prior written consent of the indemnifying party, or if there be a final judgment adverse to the indemnified party, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior consent of the indemnified party, consent to entry of any judgment or enter into any settlement which does not include as a term thereof the unconditional release of the indemnified party from all liability in respect of such claim or litigation. Each indemnified party shall furnish such information regarding itself or the claims in question as the indemnifying party may reasonably request in writing and as shall be required in connection with the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 6.10 is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such Losses which amount shall include, without limitation, the legal fees and other expenses incurred by such indemnified party in connection with the investigation and defense in such proportion as appropriate to reflect the relative fault of the Corporation, on the one hand, and the indemnified parties to be indemnified pursuant to this Section 6.10, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or mitigate the damage in respect of or prevent any untrue statement or omission or alleged untrue statement or omission giving rise to such indemnification obligation. The Corporation and the Holders agree that it would not be just and equitable if contributions pursuant to this Section 6.10 were determined by pro rata allocation or by any other method of allocation which did not take account of the equitable considerations referred to above. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who is not guilty of such fraudulent misrepresentation.
(e) Periodic payments of amounts required to be paid pursuant to this Section 6.10 shall be made during the course of the investigation or defense, as and when reasonably itemized bills therefor are delivered to the indemnifying party in respect of any particular Loss as incurred.
(f) The remedies provided in this Section 6.10 are not exclusive and should not limit any right or remedies that may otherwise be available to an indemnified party at law or in equity.
Appears in 1 contract
Sources: Securityholders Agreement (Pinnacle Gas Resources, Inc.)
Indemnification; Contribution. (a1) The In the event of any registration of any Registrable Securities pursuant to the terms of Section 6, the Company shallwill indemnify and hold harmless, to the fullest extent permitted by law, indemnify and hold harmless each Holder 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 Designated 66 20 of the Exchange Act (each such Person, a “Controlling Person”), Holders and their respective direct and indirect general and limited partners, advisory board membersAffiliates, directors, officers, partners, trustees, managers, members, employees, legal counsel, accountants, financial advisors and agents, Affiliates and shareholders, and each other Person, if any, who acts on behalf controls (within the meaning of the Securities Act and the Exchange Act) such Designated Holder or controls any such Holder or Controlling Person directors, officers, partners, trustees, employees, legal counsel, accountants, financial advisors and agents (each of the foregoing, a “Covered Person”"designated indemnified party") against any and all losses, claims, actions, damages, liabilities and expensesexpenses (including reasonable costs of investigation), joint or several, to which such Covered Person designated indemnified party may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (ix) any untrue statement or alleged untrue statement of a any 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 to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, (iiy) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) contained in any violation or alleged violation by the Company of Registration Statement under which such Registrable Securities were registered under the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In additionAct, the Company shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigatingprovided, defending or settling any such losshowever, claim, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable in any such case to the extent that any such loss, claim, action, damage, damage or liability (or expense actions or proceedings in respect thereof) arises out of or is based upon (x) any such untrue statement of any material fact or alleged untrue statement, (y) any omission to state a material fact required to be stated therein or omission or alleged omission, made or incorporated by reference necessary to make the statements therein not misleading in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same thereto, in reliance upon, upon and in conformity with, with written information prepared concerning such Designated Holder and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havepreparation thereof.
(b2) In connection with The Company may require, as a condition to including any registration in which a Holder of Registrable Securities is participatingin any Registration Statement filed pursuant to Section 6, each such Holder shall furnish to that the Company in writing shall have received an undertaking from each Designated Holder selling such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shallRegistrable Securities, severally and not jointly, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and directors, officers, employeeslegal counsel, agents accountants and financial advisors and each other Person, if any, who controls (within the meaning of the Securities Act and the Exchange Act) the Company or any Person who is or might be deemed to be such directors, officers, legal counsel, accountants and financial advisors (each of the foregoing, a Controlling Person "Company Indemnified Party") against any losses, claims, actions, damages, liabilities and or expenses, joint or several, to which they or any of them such Company Indemnified Party may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (ix) any untrue 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 to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the (y) any omission or alleged omission to state a material fact relates required to information supplied by be stated therein or necessary to make the indemnifying party or by the indemnified party, whether the violation of statements therein not misleading contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act or any other federal amendment or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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) 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.supplement
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, to By CB&I. To the fullest extent permitted by law, (i) CB&I will indemnify and hold harmless PDM, ------- each Holder of Registrable Securities, any Person who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries officers and directors, and each person controlling PDM within the meaning of Section 15 of the Securities Act Act, with respect to which registration, qualification 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 shareholderscompliance has been effected pursuant to this Agreement, and each other Personunderwriter, if any, and each person who acts on behalf of or controls any such Holder or Controlling Person (each underwriter within the meaning of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under Section 15 of the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such lossesagainst all expenses, claims, actionslosses, damagesdamages or liabilities (or actions or proceedings in respect thereof), liabilities including any of the foregoing incurred in settlement of any litigation, commenced or expenses arise threatened, arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any registration statement, prospectus, offering circular or incorporated by reference in any Registration Statementother document, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement thereto, incident to any such registration, qualification or any document incorporated by reference in the samecompliance, (ii) or based on any omission (or alleged omission of omission) to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in therein not misleading (except insofar as the same not misleading are caused by or (iii) contained in any information furnished in writing to CB&I by PDM expressly for use therein or by PDM's failure to deliver a copy of the prospectus or any amendments or supplements thereto after CB&I has furnished PDM with a sufficient number of copies of the same), or any violation or alleged violation by the Company CB&I of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws the Securities Act applicable to the Company and relating to any action or inaction required of the Company CB&I in connection with any registration such registration, qualification or compliance, and (ii) CB&I will reimburse PDM, each of securities. In additionits officers, the Company shall reimburse directors, and each Covered Person person controlling PDM, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by such Covered Person in connection with investigating, preparing, settling or defending or settling any such loss, claim, action, damage or liability. Notwithstanding the previous sentence, 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 statementaction, or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, butprovided, in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company indemnification by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) CB&I shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate proportionate to reflect the relative benefits received by fault of CB&I on the indemnified party one hand, and PDM on the indemnifying party. If other, with respect to the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount statements or omissions which resulted in such proportion as is appropriate to reflect not only the relative benefits referred to expenses, claims, losses, damages, liabilities or action in the preceding sentence but also the relative fault of the indemnified party and the indemnifying partyrespect thereof, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by CB&I or PDM, the indemnifying party or by the indemnified party, whether the violation intent of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The parties and their relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statementstatement or omission, omission or violation. The parties agree that it would but not be just and equitable if contribution pursuant by reference to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to stock ownership in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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) 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.CB&I.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, agrees:
(i) to the fullest extent permitted by law, indemnify and hold harmless each Holder of Registrable SecuritiesUnderwriter and each person, any Person if any, who is or might be deemed to be a “controlling person” of the Company or any of its subsidiaries controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Personor who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, 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 Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, damages or liabilities and expenses, joint or several, to which such Covered Person Underwriter or any such controlling person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, damages or liabilities (or expenses actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a any material fact contained in or incorporated by reference in any (A) the Registration Statement, any Preliminary Prospectus, preliminary the Time of Sale Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) Prospectus or any amendment or supplement to thereto, (B) any free writing prospectus or any document incorporated by reference in “issuer information” filed or required to be filed pursuant to Rule 433(d) under the sameSecurities Act, or (C) any Road Show, (ii) any the omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein, in light of the same circumstances under which they were made, not misleading misleading, or (iii) any violation alleged act or alleged violation failure to act by the Company of any Underwriter in connection with, or relating in any manner to, the Securities Act or the offering contemplated hereby, and which is included as part of or referred to in any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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, actiondamage, damage liability or liability. Notwithstanding the previous sentenceaction arising out of or based upon matters covered by clause (i) or (ii) above; provided, however, that the Company shall will not be so liable in any such case to the extent that any such loss, claim, action, damage, damage or liability or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, or omission or alleged omission, omission made or incorporated by reference in any such the Registration Statement, any Preliminary Prospectus, preliminary the Time of Sale Prospectus, the Prospectus, or such amendment or supplement, or any free writing prospectus or any amendment “issuer information” filed or supplement required to be filed pursuant to Rule 433(d) under the Securities Act or any document incorporated by reference in the same Road Show in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Covered Person expressly or through the Representative specifically for use in the preparation thereof, such Registration Statementinformation being the selling concession figure in the first paragraph under the caption “Underwriting—Discounts, ProspectusCommissions and Expenses” and the information set forth under the caption “Underwriting—Price Stabilization, preliminary Short Positions and Penalty Bids” concerning stabilizing transactions, short sales and passive market making in the Preliminary Prospectus and Prospectus (the “Underwriter Information”).
(ii) to reimburse each Underwriter and each such controlling person upon demand for any legal or free writing prospectus. This indemnity shall be other out-of-pocket expenses reasonably incurred by such Underwriter or such controlling person in addition connection with investigating or defending any such loss, claim, damage or liability, action or proceeding or in responding to a subpoena or governmental inquiry related to the offering of the Securities, whether or not such Underwriter or controlling person is a party to any liability action or proceeding. In the Company may otherwise haveevent that it is finally judicially determined that the Underwriters were not entitled to receive payments for legal and other expenses pursuant to this subparagraph, the Underwriters will promptly return all sums that had been advanced pursuant hereto.
(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. Each Holder shall, to the fullest extent permitted by law, Underwriter severally and not jointly will indemnify and hold harmless the Company, each of its directors directors, each of its officers who have signed the Registration Statement and officerseach person, employeesif any, agents and any Person who is controls the Company within the meaning of Section 15 of the Securities Act or might be deemed to be a Controlling Person Section 20 of the Exchange Act, against any losses, claims, actions, damages, damages or liabilities and expenses, joint or several, to which they the Company or any of them such director, officer, or controlling person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, damages or liabilities (or expenses actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a any material fact contained in the Registration Statement, any Preliminary Prospectus, preliminary the Time of Sale Prospectus, the Prospectus or any amendment or supplement thereto, in any free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or Road Show, (ii) any the omission or the alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same not misleading, buttherein, in the case light of each of clauses (i) the circumstances under which they were made, not misleading; and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, such Holder shall will 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 the Company or any such director, officer, or controlling person in connection with investigating, investigating or defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if proceeding; provided, however, that each Underwriter will be liable in each case to the extent, but only to the extent, that such settlement is effected without untrue statement or alleged untrue statement or omission or alleged omission has been made in the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree thatRegistration Statement, unless otherwise expressly agreed to in writing by such Holdersany Preliminary Prospectus, the only information furnished Time of Sale Prospectus, the Prospectus or to be furnished to the Company for use any amendment or supplement thereto, in any Registration Statement free writing prospectus, or Prospectus relating to the Registrable Securities or Road Show in any amendment, supplement or preliminary materials associated reliance upon and in conformity with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveUnderwriter Information.
(c) Any Person entitled to indemnification In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Agreement Section, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing. No indemnification provided for in Section 8(a) or (b) shall be available to any party who shall fail to give prompt written notice as provided in this Subsection if the party to whom notice was not given was unaware of the indemnifying party of any claim with respect proceeding to which it seeks indemnification. Notwithstanding such notice would have related and was materially prejudiced by the previous sentencefailure to give such notice, any but the failure or delay to so notify the indemnifying party give such notice shall not relieve the indemnifying party of its obligations under this Agreement, except or parties from any liability which it or they may have to the extent that indemnified party for contribution or otherwise than on account of the provisions of Section 5(a) or (b). In case any such proceeding shall be brought against any indemnified party and it shall notify 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 pursuant to this Agreement is brought against an indemnified partythe commencement thereof, the indemnifying party shall be entitled to participate in and shall have the righttherein and, exercisable by giving written notice to the indemnified extent that it shall wish, jointly with any other indemnifying party as promptly as practicable after receipt of written notice from similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party and shall pay as incurred the reasonable fees and disbursements of such claim or action, counsel related to assume, at the indemnifying party’s expense, the defense of such proceeding. In any such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentenceproceeding, any indemnified party shall continue have the right to be entitled to participate in the defense of such claim or action, with counsel of retain its own choicecounsel at its own expense. Notwithstanding the foregoing, but the indemnifying party shall not be obligated to reimburse pay as incurred (or within 30 days of presentation) the indemnified party for any fees, costs reasonable fees and expenses subsequently incurred of the outside counsel retained by the indemnified party in connection with such defense unless the event (Ai) the indemnifying party has and the indemnified party shall have mutually agreed in writing to pay the retention of such fees, costs and expensescounsel, (Bii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party has shall have failed to 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 action, the indemnifying party fails to and employ counsel reasonably acceptable to the indemnified party or to pursue within a reasonable period of time after notice of commencement of the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen by action. It is understood that the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 foregoing sentence, no indemnifying party shallshall not, in connection with any one claim or action or separate but substantially similar proceeding or related actions proceedings in the same jurisdiction arising out of the same general circumstances or allegationsjurisdiction, be liable for the fees, costs reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local outside counsel) for all such indemnified parties. The indemnifying party Such firm shall not have be designated in writing by you in the right to settle a claim or action for which any case of parties indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 Section 5(a) and includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff Company in such judgment or settlement the case of parties indemnified pursuant 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 claim or actionSection 5(b). The indemnifying party shall not be liable under this Agreement for any amount paid settlement of any proceeding effected without its written consent but if settled with such consent or payable or incurred pursuant to or in connection with any if there be a final judgment entered or settlement effected with for the consent of an indemnified party unless plaintiff, the indemnifying party has also consented agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. In addition, the indemnifying party will not, without the prior written consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such judgment claim, action or settlement (proceeding) unless such settlement, compromise or consent not to be unreasonably withheldincludes an unconditional release of each indemnified party from all liability arising out of such claim, conditioned action or delayed)proceeding.
(d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, insufficient to hold harmless an indemnified party under Section 5(a) or (b) above in respect of any losslosses, claimclaims, action, damage, liability damages or expense liabilities (or actions or proceedings in respect thereof) referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, action, damage, liability damages or expense liabilities (or actions or proceedings in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company on the one hand and the indemnifying partyUnderwriters on the other from the offering of the Securities. If If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, the 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 the such relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Company on the one hand and the indemnifying partyUnderwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, (or actions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative fault of benefits received by the indemnifying party, Company on the one hand, hand and of the indemnified party, Underwriters on the other handshall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by Issuer on the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party one hand or the indemnified party. The relative fault shall also be determined by reference to Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Agreement Subsection were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method or of allocation that which does not take into account of the equitable considerations referred to above in this Section 11(d)Subsection. In The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above in this Subsection 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 Subsection, (i) no event Underwriter shall the amount which a Holder of Registrable Securities may be obligated required to contribute pursuant to this Section 11(d) exceed an any amount equal in excess of the underwriting discounts and commissions applicable to the net proceeds (after deducting Selling Expenses) actually received Securities purchased by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party Underwriter and (ii) no person 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 person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this Subsection to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The provisions In any proceeding relating to the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus or any supplement or amendment thereto, any free writing prospectus, or Road Show each party against whom contribution may be sought under this Section 11 hereby consents to the jurisdiction of any court having jurisdiction over any other contributing party, agrees that process issuing from such court may be served upon him or it by any other contributing party and consents to the service of such process and agrees that any other contributing party may join him or it as an additional defendant in any such proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The indemnity and contribution agreements contained in this Section and the representations and warranties of the Company set forth in this Agreement shall remain operative and in full force and effect effect, regardless of (i) any investigation made by or on behalf of any indemnified party Underwriter or any officerperson controlling any Underwriter, director the Company, its directors or officers or any persons controlling person of such indemnified party and shall survive the Transfer Company, (ii) acceptance of any Registrable Securities by and payment therefor hereunder, and (iii) any Holdertermination of this Agreement. A successor to any Underwriter, or to the Company, its directors or officers, or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in this Section.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shallIn the event of any registration of any equity securities of the Corporation under the Securities Act or applicable Canadian securities Laws, to the fullest extent permitted by lawCorporation will, and hereby does agree to, indemnify and hold harmless harmless, in the case of any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, the seller of any Registrable Shares covered by such registration statement or prospectus, its respective directors and officers, partners and members, each Holder of Registrable Securities, any other Person who is participates as an underwriter in the offering or might be deemed to be a “controlling person” sale of the Company such securities, and each other Person, if any, who controls such seller or any of its subsidiaries such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such PersonAct, 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 Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 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 to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky applicable Canadian securities laws, any equivalent non-U.S. securities laws Laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a any material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, free writing any registration statement or prospectus (as defined in Rule 405 under which such securities were registered under the Securities Act Act, any preliminary prospectus, final prospectus included therein or any successor rule to Rule 405) filed with applicable Canadian securities regulatory authorities, or any amendment of or supplement to the same thereto, or any document incorporated by reference therein, or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading; provided, buthowever, that the Corporation shall not be liable in the any such case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, liability (or action or proceeding if in respect thereof) or expense arises out of or is based upon (x) an untrue statement or alleged untrue statement or omission or alleged omission made in such settlement is effected without the consent of registration statement, any such Holder. The Company preliminary prospectus, final prospectus or amendment or supplement thereto, in reliance upon and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only conformity with written information furnished or to be furnished to the Company Corporation for use in any Registration Statement the preparation thereof by such seller or Prospectus relating to underwriter, as the Registrable Securities case may be, or (y) an untrue statement or alleged untrue statement or omission or alleged omission made in any amendmentpreliminary prospectus but notified to such seller and underwriter prior to any sale or other disposition of Registrable Shares and subsequently corrected by the Corporation in any final prospectus, amendment or supplement made available to such seller or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock underwriter but which final prospectus, amendment or supplement was not used by such Holder and its Affiliatesseller or underwriter in the sale or other disposition of Registrable Shares that gave rise to such loss, claim, damage, liability (bor action or proceeding in respect thereof) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such documentexpense. This indemnity shall be in addition to any liability which such Holder the Corporation may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreement, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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) 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
Sources: Registration Rights Agreement (Odyssey Re Holdings Corp)
Indemnification; Contribution. (a) The Company shallIn the event of any registration of any equity securities of the Corporation under the Securities Act or applicable Canadian securities Laws, to the fullest extent permitted by lawCorporation will, and hereby does agree to, indemnify and hold harmless harmless, in the case of any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, the seller of any Registrable Shares covered by such registration statement or prospectus, its respective directors and officers, partners and members, each Holder of Registrable Securities, any other Person who is participates as an underwriter in the offering or might be deemed to be a “controlling person” sale of the Company such securities, and each other Person, if any, who controls such seller or any of its subsidiaries such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such PersonAct, 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 Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities 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 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 to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, 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. Notwithstanding the previous sentence, 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 or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. 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. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky applicable Canadian securities laws, any equivalent non-U.S. securities laws Laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a any material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, free writing any registration statement or prospectus (as defined in Rule 405 under which such securities were registered under the Securities Act Act, any preliminary prospectus, final prospectus included therein or any successor rule to Rule 405) filed with applicable Canadian securities regulatory authorities, or any amendment of or supplement to the same thereto, or any document incorporated by reference therein, or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading; provided, buthowever, that the Corporation shall not be liable in the any such case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, liability (or action or proceeding if in respect thereof) or expense arises out of or is based upon (x) an untrue statement or alleged untrue statement or omission or alleged omission made in such settlement is effected without the consent of registration statement, any such Holder. The Company preliminary prospectus, final prospectus or amendment or supplement thereto, in reliance upon and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only conformity with 10 written information furnished or to be furnished to the Company Corporation for use in any Registration Statement the preparation thereof by such seller or Prospectus relating to underwriter, as the Registrable Securities case may be, or (y) an untrue statement or alleged untrue statement or omission or alleged omission made in any amendmentpreliminary prospectus but notified to such seller and underwriter prior to any sale or other disposition of Registrable Shares and subsequently corrected by the Corporation in any final prospectus, amendment or supplement made available to such seller or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock underwriter but which final prospectus, amendment or supplement was not used by such Holder and its Affiliatesseller or underwriter in the sale or other disposition of Registrable Shares that gave rise to such loss, claim, damage, liability (bor action or proceeding in respect thereof) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such documentexpense. This indemnity shall be in addition to any liability which such Holder the Corporation may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or any such director or officer, underwriter or controlling Person and shall survive the transfer of such securities by such seller.
(b) The Corporation may require, as a condition to including any Registrable Shares in any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, that the Corporation shall have received an agreement satisfactory to it from (i) the prospective seller of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 9(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 director of the Corporation and each of the Corporation's officers who signed the registration statement or prospectus, each such underwriter of such securities, and each other Person, if any, who controls the 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 9(a) above) the Corporation, each officer who signed the registration statement or prospectus and each director of the Corporation, each prospective seller, and each other Person, if any, who controls the Corporation or any such 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 preliminary prospectus, final prospectus, or any amendment or supplement thereto, if such untrue statement or omission was made in reliance upon and in conformity with written information furnished by such prospective seller or such underwriter, as the case may be, to the Corporation for use in the preparation of such registration statement, preliminary prospectus, final prospectus, amendment or supplement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Corporation or any such director, officer or controlling Person and shall survive the transfer of such securities by such seller.
(c) Any Person entitled Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding (including any governmental investigation) involving a claim referred to indemnification pursuant in either Section 9(a) above or (b) above, such indemnified party will, if a claim in respect thereof is to this Agreement shall be made against an indemnifying party, give prompt written notice to the indemnifying party latter of the commencement of such action; provided, however, that the failure of any claim with respect indemnified party to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding provisions of this AgreementSection 9, except to the extent that the indemnifying party is actually and materially prejudiced by reason of such failure or delayto give notice. In case a claim or an any such action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have assume the rightdefense thereof, exercisable by giving written notice jointly with any other indemnifying party similarly notified, to the indemnified party as promptly as practicable extent that it may wish, and after receipt of written notice from the indemnifying party to such indemnified party of such claim or action, its election so to assume, at the indemnifying party’s expense, assume the defense of any such claim or actionthereof, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to be entitled to participate in the defense of such claim or action, with counsel of its own choice, but the indemnifying party shall will not be obligated liable to reimburse the such indemnified party for any fees, costs and legal or other 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 action within a reasonable time after receipt of notice of such claim or actionthereof. If, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counsel reasonably acceptable to in the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous mannerparty's reasonable judgment, (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 (E) between such indemnified party and indemnifying parties may exist in respect of such claim, the indemnified party has reasonably concluded that there may shall be one or more legal or equitable defenses available entitled to it and/or other any other indemnified party which are different from or additional to those available to participate in the defense thereof and the indemnifying party. Subject to the foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, shall not be liable for the fees, costs fees and expenses of more than one firm of attorneys (in addition to any local counsel) counsel for all indemnified parties. The indemnifying party shall not have sellers of Registrable Shares, or more than one counsel for the right to settle a claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement for any amount paid or payable or incurred pursuant to or underwriters in connection with any judgment entered one action or settlement effected with the consent of an indemnified party unless the indemnifying party has also consented to such judgment separate but similar or settlement (such consent not to be unreasonably withheld, conditioned or delayed)related actions.
(d) If the indemnification provided for in the foregoing clauses (a), (b) and (c) of this Section 11 9 is held by a court of competent jurisdiction unavailable to be unavailable to, or unenforceable by, an the indemnified party parties in respect of any losslosses, claimclaims, action, damage, liability damages or expense liabilities referred to in this Section 11therein, 11 then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount amounts paid or payable by such indemnified party parties as a result of such losslosses, claimclaims, actiondamages or liabilities (i) as between the Corporation and the holders of Registrable Shares covered by a registration statement, damageon the one hand, liability or expense and the underwriters, on the other, in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Corporation and such holders, on the one hand, and the indemnifying party. If underwriters, on the other, from the offering of the Registrable Shares, or if such allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Corporation and such holders, on the indemnifying partyone 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 or prospectus, on the other, in such proportion as is appropriate to reflect the relative fault of the Corporation and of each such holder in connection with such statements or omissions, 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 indemnifying partyCorporation and such holders, on the one hand, and of the indemnified partyunderwriters, on the other handother, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Corporation and such holders or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified partyunderwriters. The relative fault of the Corporation, on the one hand, and of each such holder, on the other, shall also be determined by reference to, among other things, whether the untrue or alleged 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 statement, omission statement or violation. omission.
(e) The parties Corporation and the holders of Registrable Shares agree that it would not be just and equitable if contribution pursuant to this Agreement Section 9(d) were determined by pro rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method or of allocation that does not take into account of the equitable considerations referred to in this the next preceding paragraph. Notwithstanding the provisions of Section 11(d9(d). In , no event holder of Registrable Shares shall be required to contribute any amount in excess of the amount by which a Holder the total price at which the Registrable Shares of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal such holder were offered to the net proceeds (after deducting Selling Expenses) actually received public exceeds the amount of any damages that such holder has otherwise been required to pay by reason of such Holder in the sale of Registrable Securities that gives rise to such obligation to contributeuntrue or alleged untrue statement or omission or alleged omission. No indemnified party person 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 person who was not guilty of such fraudulent misrepresentation.
(e) . The provisions obligation of the holders of Registrable Shares to contribute pursuant to this Section 11 shall remain 9 is several in full force 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 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 Holdernot joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Odyssey Re Holdings Corp)
Indemnification; Contribution. (a) The Company shall, to To the fullest extent permitted by law, the Company will indemnify Commerce, each of its officers, directors, members and hold harmless partners, and each Holder of Registrable Securitiesperson controlling Commerce, any Person who is with respect to which registration, qualification or might be deemed compliance has been effected pursuant to be a “this Agreement, each director and controlling person” person of the Company or any of its subsidiaries within the meaning of Section 15 and each officer of the Securities Act or Section 20 of Company who signed 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 shareholdersRegistration Statement, and each other Personunderwriter, if any, and each person who acts on behalf of or controls any underwriter, against all claims, losses, damages and liabilities (or actions, proceedings or settlements, if such Holder or Controlling Person (each settlements are effected with the written consent of the foregoingCompany, a “Covered Person”in respect thereof) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification or the like, any amendments or supplements thereto and any documents incorporated by reference in therein) incident to any Registration Statementsuch registration, Prospectusqualification or compliance, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to or any document incorporated by reference in the same, omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iii) any violation or alleged violation by the Company of the Securities Act or the Exchange Act or any other similar federal or state applicable securities laws or other federal, state or common law or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration such registration, qualification or compliance, and will reimburse Commerce, each of securities. In additionits officers, the Company shall reimburse directors, members and partners, and each Covered Person person controlling Commerce, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by such Covered Person in connection with investigating, investigating and defending or settling any such claim, loss, claimdamage, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall will not be so liable in any such case to the extent that any loss, such claim, actionloss, damage, liability or expense arises out of or is based upon on any such untrue statement or alleged untrue omission made in such registration statement, prospectus, offering circular or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any other document incorporated by reference in the same in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by Commerce or such Covered Person expressly underwriter and stated to be specifically for use therein. Such indemnity obligation shall remain in such Registration Statement, Prospectus, preliminary Prospectus full force and effect regardless of any investigation made by or free writing prospectus. This indemnity on behalf of Commerce and shall be in addition to any liability survive the Company may otherwise havetransfer of Registrable Securities by Commerce.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to To the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, Commerce will indemnify and hold harmless the Company, each of its directors directors, officers and officerscontrolling persons, employeesand each underwriter, agents if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of the Securities Act or the Exchange Act or the rules and any Person who is or might be deemed to be a Controlling Person regulations thereunder, against any all claims, losses, claims, damages and liabilities (or actions, damages, liabilities and expenses, joint proceedings or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise settlements in respect thereof) arising out of or are based upon (i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in the Registration Statementany such registration statement, Prospectusprospectus, preliminary Prospectusoffering circular or other document, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or omission (ii) any omission or alleged omission of omission) to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butand 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 case of each of clauses (i) and (ii)extent, but only to the extent extent, that such untrue statement (or alleged untrue statement, ) or omission (or alleged omission, ) is made in such Registration Statementregistration statement, Prospectusprospectus, preliminary Prospectus, free writing prospectus offering circular or any amendment or supplement to the same other document in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder expressly Commerce and stated to be specifically for use in such Registration Statementtherein; provided, Prospectushowever, preliminary Prospectus or free writing prospectus. In addition, such Holder shall reimburse that 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) liability of Commerce hereunder shall be individual and several, not joint and several, for each participating Holder and shall be proportional limited to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in Commerce from the sale of Registrable Registered Securities as contemplated herein giving rise to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person Each party entitled to indemnification pursuant to under this Agreement Section 4 (the “Indemnified Party”) shall give prompt written notice to the indemnifying party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim with respect as to which it seeks indemnification. Notwithstanding indemnity may be sought, and shall permit the previous sentenceIndemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, 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 or delay of any Indemnified Party to so notify the indemnifying party give notice as provided herein shall not relieve the indemnifying party Indemnifying Party of its obligations under this Agreement, except to the extent that the indemnifying party is actually and materially prejudiced by reason of unless such failure or delayto notify materially adversely affects the Indemnifying Party’s ability to defend such action. In case a claim or an action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified partyNo Indemnifying 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 such claim or actionlitigation, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 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 action within a reasonable time after receipt of notice of such 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 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 (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 foregoing sentence, no indemnifying party shall, in connection except with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified partyeach Indemnified Party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, Indemnified Party of a full and final release from all liability in respect of such claim or actionlitigation. The indemnifying party Each Indemnified Party shall not furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be liable under this Agreement for any amount paid or payable or incurred pursuant to or reasonably required in connection with any judgment entered or settlement effected with the consent defense of an indemnified party unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed)claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 11 is held 4 shall for any reason be unenforceable or otherwise unavailable by a court of competent jurisdiction to be unavailable toan Indemnified Party, or unenforceable by, an indemnified party although otherwise available in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11accordance with its terms, then the applicable indemnifying partyeach Indemnifying Party shall, in lieu of indemnifying such indemnified party under this AgreementIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of the losses, claims, damages, liabilities or expenses with respect to which such lossIndemnified Party has claimed indemnification, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Indemnified Party on the one hand and the indemnifying partyIndemnifying Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault fault, in the case of the indemnifying partyan untrue statement, on the one handalleged untrue statement, and of the indemnified party, on the other handomission or alleged omission, shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party Indemnifying Party or the indemnified party. The relative fault shall also be determined by reference to the Indemnified Party, and such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, alleged statement, omission or violationalleged omission. The parties Company and Commerce agree that it would not be just and equitable if contribution pursuant hereto were to this Agreement were be determined by pro rata allocation or by any other method or of allocation that 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 this Section 11(d)connection with investigating or defending against any action or claim which is the subject hereof. In no event case, however, shall Commerce be responsible for a portion of the amount which a Holder contribution obligation in excess of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in Commerce from the sale of Registrable Securities that gives securities as contemplated herein giving rise to such obligation to contributeliability. No indemnified party person 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 person who was is not guilty of such fraudulent misrepresentation.
(e) The provisions of Anything to the contrary contained in this Section 11 4 notwithstanding, Commerce shall remain not be liable for any indemnification or contribution in full force and effect regardless excess of the gross proceeds received by it from any investigation made by or on behalf sale 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 Holderwhich has been registered hereunder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, to the fullest extent permitted by law, will indemnify and hold harmless each Holder 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, holder and each other Personaffiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, if any, who acts on behalf of or controls under any such Holder Blue Sky Law or Controlling Person (each of the foregoing, a “Covered Person”) regulation against any losses, claims, actions, damages, liabilities and expensesor liabilities, joint or several, to which such Covered Person holder may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statementpreliminary prospectus, Prospectusregistration statement, preliminary Prospectusprospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to thereto, or any document incorporated by reference in arise out of or are based upon the same, (ii) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company misleading, and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall will reimburse each Covered Person such holder and affiliate for any legal or other expenses reasonably incurred by such Covered Person holder in connection with investigating, investigating or defending or settling any such lossaction or claim regardless of the negligence of any such holder or affiliate; provided, claimhowever, action, damage or liability. Notwithstanding the previous sentence, that the Company shall not be so liable in any such case to the extent that any such loss, claim, action, damage, or liability or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omission, omission made or incorporated by reference in any such Registration Statementpreliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any such amendment or supplement to or any document incorporated by reference in the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by any such Covered Person holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise havetherein.
(b) In connection with any registration in which a Holder Each holder of Registrable Securities is participating, each such Holder shall furnish Common Stock registered pursuant to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, this Agreement will indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person Company against any losses, claims, actions, damages, or liabilities and expenses, joint or several, to which they or any of them the Company may become subject subject, under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, or liabilities (or expenses actions in respect thereof) arise out of or are based upon (i) any an untrue statement or alleged untrue statement of a material fact contained in the Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement thereto, or arise out of or supplement to are based upon the same or (ii) any omission or alleged omission of to state therein a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading, butin each case to the extent, in the case of each of clauses (i) and (ii), but only to the extent extent, that such untrue statement or alleged untrue statement, statement or omission or alleged omission, is omission was made in such Registration Statementany preliminary prospectus, Prospectusregistration statement or prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to the same thereto, in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company by such Holder holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise havetherein.
(c) Any Person entitled Promptly after receipt by an indemnified party under Sections 8(a) or (b) above of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to indemnification pursuant to this Agreement shall give prompt written notice to be made against the indemnifying party under either such subsection, notify the indemnifying party in writing of any claim with respect the commencement thereof; but the omission so to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so 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 its obligations under this Agreement, 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 pursuant to this Agreement is brought against an indemnified party, commencement thereof 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, assume the defense of any such claim or action, with counsel reasonably acceptable thereof by notice in writing to the indemnified party. Notwithstanding After notice from the previous sentence, any indemnifying party to such indemnified party shall continue of its election to be entitled to participate in assume the defense of such claim or actionthereof, with counsel of its own choice, but the indemnifying party shall not be obligated liable to reimburse the such indemnified party under either of such subsections for any feeslegal expenses of other counsel or any other expense, costs and expenses in each case subsequently incurred by the such indemnified party party, in connection with such the defense unless (A) thereof other than reasonable costs of investigation incurred prior to the assumption by the indemnifying party has agreed party, unless such expenses have been specifically authorized in writing to pay such feesby the indemnifying party, costs and expenses, (B) the indemnifying party has failed to assume the defense and 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 claim or action within a reasonable time after receipt of notice indemnified party has been advised by counsel that the representation of such claim or action, (C) having assumed the defense of such claim or action, indemnified party and the indemnifying party fails by the same counsel would be inappropriate due to employ actual or potential differing interests between them, in each of which cases the fees of counsel reasonably acceptable to for the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (D) the use of counsel chosen will be paid by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement without the consent of the indemnified party, The indemnifying party shall not consent to the 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 includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 8 is held by a court of competent jurisdiction unavailable or insufficient to be unavailable to, or unenforceable by, hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or action in respect thereof) referred to in this Section 11therein, then the applicable each indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result of such losslosses, claimclaims, actiondamages, damage, liability or expense liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the indemnified party Company and the indemnifying partyholder or holders from this Agreement and from the offering of the shares of Common Stock. If If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, the 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 the such relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party Company and the indemnifying partyholders in connection with the statement or omissions that resulted in such losses, claims, damages, or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Agreement Section 8(d) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method or of allocation that does not take into account the equitable considerations referred to above in this Section 11(dsubsection (e). In no event shall Except as provided in Section 8(c), the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed paid or payable by an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable of fraudulent misrepresentation within the meaning of Section 11(f) as a result of the Securities Act shall be entitled losses, claims, damages, or liabilities (or actions in respect thereof) referred to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The provisions of above in 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.Section
Appears in 1 contract
Sources: Warrant Agreement (Cd Warehouse Inc)
Indemnification; Contribution. (a) The Company shallshall indemnify and hold harmless, to the fullest extent permitted by law, indemnify and hold harmless each Holder Holder, in its capacity as a holder of Registrable Securities or Shelf Registrable Securities, any Person who is or might be deemed to be a “controlling person” of the Company a 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 “Holder 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 Holder or Holder Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, or any equivalent non-U.S. securities laws or otherwiselaws, 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 or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, issuer free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405thereto) or any amendment thereof or supplement to thereto or any document incorporated by reference in the sametherein, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein (in the same case of a Prospectus, preliminary Prospectus, or any issuer free writing Prospectus in light of the circumstances under which they were made) not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, and the Company shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, investigating or defending or settling any such loss, claim, action, damage or liability. Notwithstanding the previous sentence, ; provided that the Company shall not be so liable in any such case to the extent that (i) 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 to thereto or any document incorporated by reference in the same therein in reliance upon, and in conformity with, written information prepared and furnished to the Company by or on behalf of such Covered Person (including by any Investor Holder with respect to information about the Selling Holders) expressly for use in therein, or (ii) with respect to any liability of Selling Holders under Section 12 of the Securities Act, such Registration Statement, Prospectus, preliminary Prospectus Covered Person knew of such untruth or free writing prospectusomission. 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. Each Holder shallProspectus and shall indemnify and hold harmless, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and directors, officers, employees, agents and 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 “Company Controlling Person Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, laws or any equivalent non-U.S. securities laws or otherwiselaws, 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405thereto) or any amendment of thereof or supplement to the same or thereto, (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made therein (in the same case of a Prospectus, preliminary Prospectus, or any free writing prospectus, in light of the circumstances under which they were made) not misleadingmisleading or (iii) the failure of such Holder to deliver a prospectus in accordance with the requirements of the Securities Act or Exchange Act, but, in the case of each of clauses (i) and (ii), only 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 (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement to the same thereto in reliance upon, and in conformity with, written information prepared and furnished to the Company by or on behalf of such Holder expressly for use in such Registration Statementtherein, Prospectus, preliminary Prospectus or free writing prospectus. In addition, and such Holder shall reimburse the Company, its directors and directors, officers, employees, agents and any Person who is or might be deemed to be a Company Controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating, investigating or defending or settling any such loss, claim, action, damage or liability. The ; provided that the obligation to indemnify pursuant to this Section 11(b10(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net gross proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise have.
(c) Any Person entitled to indemnification pursuant to this Agreement hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, ; provided that any failure or delay to so notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Agreementhereunder, 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 pursuant to this Agreement 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 such claim or action, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence; provided, that any indemnified party shall continue to 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 in connection with such defense unless (A) the indemnifying indemnified 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 action within a reasonable time after receipt of notice of such 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 or to pursue after a reasonable time after notice of the defense institution of such claim or action in a reasonably vigorous manneraction, (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 (E) the indemnified party has reasonably concluded that there may be are 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 clauses (D) and (E) of the foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, 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 entitled to indemnification pursuant to this Agreement hereunder without the consent of the indemnified party, The and the indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action action, in each case unless such judgment or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement 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 claim or action. The indemnifying party shall not be liable under this Agreement 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 unless the indemnifying party has also consented to such judgment or settlement (such consent not to be unreasonably withheld, conditioned or delayed).
(d) If the indemnification provided for in this Section 11 10 is held by a court of competent jurisdiction to be unavailable to, or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred for which this Agreement purports to in this Section 11provide for indemnification, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreementhereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, on the one hand, and of the indemnified party, on the other hand, in connection with the statements or omissions which resulted in such loss, claim, action, damage, liability or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law thereunder applicable to the Company, and, Company and relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction securities was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to , and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission statement or violationomission. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement hereto were determined by pro rata allocation or by any other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d10(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d10(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable 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) The provisions of this Section 11 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 Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Charter Communications, Inc. /Mo/)
Indemnification; Contribution. (a) The In the event of any ----------------------------- registration of any securities of the Company shallunder the Securities Act, to the fullest extent permitted by lawCompany will, and hereby does, indemnify and hold harmless each Holder in the case of any registration statement filed pursuant to Section 2 or 3, the holder of any Registrable SecuritiesSecurities covered by such registration statement, 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 directors and indirect general and limited partners, advisory board members, directors, officers, trusteeseach officer and director of each underwriter, managers, members, employees, agents, Affiliates and shareholders, each other person who participates as an underwriter in the offering or sale of such securities and each other Personperson, if any, who acts on behalf of controls such holder or controls any such Holder or Controlling Person (each underwriter within the meaning of the foregoing, a “Covered Person”) Securities Act against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person holder or any such director or officer or participating or controlling person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses (or actions or proceedings or investigations in respect thereof) arise out of or are based upon (ix) any untrue statement or alleged untrue statement of a any material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 registration statement under which such securities were registered under the Securities Act Act, any preliminary prospectus (unless, with respect to the indemnification of the officers and directors of each underwriter and each other person participating as an underwriter, any such statement is corrected in a subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or any successor rule to Rule 405) summary prospectus included therein, or any amendment or supplement to thereto, or any document incorporated by reference in the sametherein, or (iiy) any omission or alleged omission of to state therein a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus therein or necessary to make the statements made in the same therein not misleading misleading, or (iiiz) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to laws, and the Company will reimburse such holder and relating to any action or inaction required of the Company in connection with any registration of securities. In additioneach such director, the Company shall reimburse each Covered Person officer, participating person and controlling person for any legal or any other expenses reasonably incurred by such Covered Person them in connection with investigating, investigating or defending or settling any such loss, claim, actionliability, damage action or liability. Notwithstanding the previous sentenceproceeding; provided, however, that the Company shall not -------- ------- be so liable to any seller, director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, action, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon any such an untrue statement or alleged untrue statement, statement or omission or alleged omissionomission 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 in an instrument executed by or under the direction of such seller, director, officer, participating person or controlling person for use in the preparation thereof, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or other document. Such indemnity shall remain in full force and effect regardless of any investigation made by or incorporated on behalf of such seller or any such director, officer, participating person or controlling person and shall survive the transfer of such securities by reference such seller. The Company shall agree to provide for contribution relating to such indemnity as shall be reasonably requested by any seller of Registrable Securities or the underwriters.
(b) The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(a), that the Company shall have received an undertaking satisfactory to it from the prospective sellers of such Registration Statementsecurities and their underwriters, Prospectusto indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 6) the Company, each director of the Company, each officer of the Company who shall sign such registration statement and each other person, if any, who controls the Company within the meaning of the Securities Act, with respect to any statement in or omission from such registration statement, any preliminary Prospectusprospectus, free writing final prospectus or summary prospectus included therein, or any amendment or supplement to thereto, but only if such statement or any document incorporated by reference in the same omission was made in reliance upon, upon and in conformity with, with written information prepared and furnished to the Company through an instrument duly executed by such Covered Person expressly sellers or their underwriters specifically stating that it is for use in the preparation of such Registration Statement, Prospectusregistration statement, preliminary Prospectus prospectus, final prospectus, summary prospectus, amendment or free writing prospectussupplement. This Such indemnity shall be remain in addition to full force and effect regardless of any liability investigation made by or on behalf of the Company may otherwise have.
(b) In connection with or any registration in which a Holder such director, officer or controlling person and shall survive the transfer of Registrable Securities is participating, each such Holder shall furnish securities by such sellers. Anything contained herein to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which they or any of them may become subject under the Securities Actcontrary notwithstanding, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise out maximum liability 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 (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment of or supplement to the same or (ii) any omission or alleged omission of a material fact required to be stated in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading, but, each prospective seller in the case of each of clauses (i) and (ii), only 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 or supplement to the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. In addition, 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 investigating, defending or settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) prospective seller shall be individual and several, not joint and several, for each participating Holder and shall be proportional limited to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in prospective seller from the sale of such Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity shall be in addition to any liability which such Holder may otherwise haveSecurities.
(c) Any Person entitled Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to indemnification pursuant in the preceding subdivisions of this Section 6, such indemnified party will, if a claim in respect thereof is to this Agreement shall be made against an indemnifying party, give prompt written notice to the indemnifying party latter of the commencement of such action; provided, -------- however, that the failure of any claim with respect indemnified party to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party give notice as provided ------- herein shall not relieve the indemnifying party of its obligations under the preceding subdivisions of this Agreement, Section 6 except to the extent that the indemnifying party is actually party's rights are prejudiced, or liabilities and materially prejudiced by reason obligations under this Section 6 are increased, as a result of such failure or delayto give notice. In case a claim or an any such action that is subject or potentially subject to indemnification pursuant to this Agreement is brought against an indemnified party, the indemnifying party shall be entitled to participate in and shall have to assume the rightdefense thereof, exercisable by giving written notice jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party as promptly as practicable after receipt of written party. After notice from the indemnifying party to such indemnified party of such claim or action, its election so to assume, at the indemnifying party’s expense, assume the defense of any such claim or actionthereof, with counsel reasonably acceptable to the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to 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 liable to reimburse the such indemnified party for any fees, costs and legal or other expenses subsequently incurred by the indemnified party in connection with such the defense thereof unless (Ai) the indemnifying party has agreed in writing shall have failed to pay such fees, costs and expensesretain counsel for the indemnified party as aforesaid, (Bii) the indemnifying party has failed to 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 action, the indemnifying party fails to employ counsel reasonably acceptable to and the indemnified party or shall have mutually agreed to pursue the defense retention of such claim counsel or action in a reasonably vigorous manner, (Diii) representation of such indemnified party by the use of counsel chosen retained by the indemnifying party would be inappropriate due to represent actual or potential differing interests between such indemnified party and any other person represented by such counsel in such proceeding or the indemnified party would present such counsel with a conflict of interest or (E) the indemnified party has shall have 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 foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees, costs and expenses of more than one firm of attorneys (in addition to any local counsel) for all indemnified parties. The which case the indemnifying party shall not have the right to settle a claim or direct the defense of such action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the consent on behalf of the indemnified party, The ). No indemnifying party shall not will consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement which does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes include as an unconditional term of such judgment or settlement thereof the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, party of a full and final release from all liability in respect of to such claim or actionlitigation. The indemnifying party shall not be liable under this Agreement for any amount paid or payable or incurred pursuant to or in connection with settlement of any judgment entered or settlement proceeding effected with without the written consent of an indemnified such indemnifying party unless (which consent shall not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party has also consented agrees to indemnify each indemnified party from and against any loss or liability by reason of such judgment settlement or settlement (such consent not to be unreasonably withheld, conditioned or delayed)judgment.
(d) If the indemnification provided for Indemnification and contribution similar to that specified in this Section 11 is held 6 (with appropriate modifications) shall be given by a court the Company and each seller of competent jurisdiction Registrable Securities with respect to be unavailable to, any required registration or unenforceable by, an indemnified party in respect of any loss, claim, action, damage, liability or expense referred to in this Section 11, then the applicable indemnifying party, in lieu of indemnifying such indemnified party under this Agreement, shall contribute to the amount paid or payable by such indemnified party as a result other qualification of such loss, claim, action, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the indemnified party and the indemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnified party and the indemnifying party, as well as Registrable Securities under any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule regulation or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or violation. The parties agree that it would not be just and equitable if contribution pursuant to this Agreement were determined by pro rata allocation or by any governmental authority other method or allocation that does not take into account the equitable considerations referred to in this Section 11(d). In no event shall the amount which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party guilty or liable of fraudulent misrepresentation within the meaning of Section 11(f) of than the Securities Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentationAct.
(e) The provisions rights and obligations of the parties under 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 6 shall survive any termination of the Transfer of any Registrable Securities by any HolderPurchase Agreement.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Bankers Trust New York Corp)