Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party. (b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation. (c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party. (d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding. (e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. (f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Bradley Pharmaceuticals Inc), Registration Rights Agreement (Bradley Pharmaceuticals Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserholder and each affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, each Holder, each person, if any, who controls or under any Initial Purchaser Blue Sky Law or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and regulation against any losslosses, damageclaims, expensedamages, liabilityor liabilities, claim joint or any actions in respect thereof (including the reasonable cost of investigation) several, to which such Indemnified Party holder may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectuspreliminary prospectus, including any document incorporated by reference thereinregistration statement, prospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each such holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, damage, expense, liability, action or claim regardless of the negligence of any such holder or action in respect thereofaffiliate; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense, liability, claim or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained registration statement or prospectus, or any such amendment or supplement thereto, in this subsection (a) shall not inure reliance upon and in conformity with written information furnished to the benefit of any Holder from whom the person asserting Company by any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyholder expressly for use therein.
(b) Each Holder, severally and not jointly, agrees holder of Common Stock registered pursuant to indemnify, defend this Agreement will indemnify and hold harmless the CompanyCompany against any losses, its directorsclaims, officersdamages, employees, representatives, agents and any person who controls or liabilities to which the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachmay become subject, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary prospectus, registration statement or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or was made in any preliminary prospectus, in the light of the circumstances under which they were maderegistration statement or prospectus, not misleadingor any amendment or supplement thereto, in connection reliance upon and in conformity with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have written information furnished to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationholder expressly for use therein.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aPromptly after receipt by an indemnified party under Sections 8(a) or (b) above of this Section 6the commencement of any action, such person (indemnified party shall, if a claim in respect thereof is to be made against the “Indemnified Party”) shall promptly indemnifying party under either such subsection, notify the person against whom such indemnity may be sought (the “Indemnifying Party”) indemnifying party in writing of the institution commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability that it may otherwise have to any indemnified party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of such Proceeding and the Indemnifying Party commencement thereof the indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After notice from the indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from subsections for any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expense, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense thereof other than reasonable costs of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as investigation incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without assumption by the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyindemnifying party, unless such settlement includes an unconditional release expenses have been specifically authorized in writing by the indemnifying party, 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 Indemnified Party from all liability on claims that are indemnified party and the subject matter indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them, in each of such Proceeding and does not include an admission which cases the fees of fault, culpability or a failure to act, counsel for the indemnified party will be paid by or on behalf of such Indemnified Partythe indemnifying party.
(d) If the indemnification provided for in this Section 6 8 is unavailable or insufficient to hold harmless an Indemnified Party indemnified party under subsections (aSection 8(a) and (bor 8(b) of this Section 6 in respect of any losses, claims, damages, expenses, liabilities, claims or actions liabilities (or action in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders holder or the Initial Purchasers on the other hand holders from this Agreement and from the offering of the Registrable Securities or (ii) if shares of Common Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other holders in connection with the statements statement or omissions which that resulted in such losses, claims, damages, expenses, liabilities, claims or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders or such Initial Purchaser holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers holders agree that it would not be just and equitable if contribution pursuant to this Section 6 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 of allocation which that does not take into account of the equitable considerations referred to above in this subsection (de). 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) above. Notwithstanding the provisions of referred to above in this Section 6, no Holder 8(d) shall be required deemed to contribute include any amount legal or other expenses reasonably incurred by such indemnified party in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of connection with investigation or defending any damages which it has otherwise been required to pay by reason of such untrue action or alleged untrue statement or omission or alleged omissionclaim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for Notwithstanding any provision in this Section 6 are not exclusive and 8(d) to the contrary, no holder shall not limit be liable for any rights 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 remedies which may otherwise be available to any indemnified party at law or in equityliabilities.
(fe) The indemnity and contribution provisions contained in obligations of the Company under this Section 6 8 shall remain operative and be in full force and effect regardless of (i) addition to any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling liability that the Company may otherwise have and (iii) shall extend, upon the sale 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 Security 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 agrees to indemnify, defend indemnify and hold harmless each Initial PurchaserHolder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each Holder, such Holder and each person, if any, Person who controls any Initial Purchaser or such Holder within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and Act, to the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”)fullest extent permitted by applicable law, from and against any lossand all losses, damageclaims, expensedamages, liability, claim liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof (including the reasonable cost of investigationthereof) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arise out of or is are based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf a Registration Statement as originally filed or Prospectusin any amendment thereof, including or the Disclosure Package, or any document incorporated by reference thereinpreliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission and agrees to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimbursereimburse each such indemnified party, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, expense, liability, claim liability or action in respect thereof(whether or not the indemnified party is a party to any proceeding); provided, however, that (i) insofar as the Company will not be liable in any case to the extent that any such loss, claim, damage, expense, liability, claim liability or action expense arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several omission made therein in proportion reliance upon and in conformity with written information furnished to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made Company by or on behalf of any such Holder or Initial Purchaser or specifically for inclusion therein including, without limitation, any person controlling any Holder or Initial Purchasernotice and questionnaire, or the Company, or the Company’s officers or directors or any person controlling the Company and (iiiii) the sale out of any sales of Registrable Security by any Holder.Securities 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 agrees Guarantor and the Issuer agree to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company Guarantor and the Issuer shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Guarantor and the Issuer shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon (i) any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company Guarantor expressly for use therein and in, any Shelf Registration Statement or any Prospectus or (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating a disposition, pursuant to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concernedby an Indemnified Party during a Suspension Period, to the extent that a prospectus relating provided such Indemnified Party received, prior to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection disposition, a Suspension Notice with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given respect to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderSuspension Period; provided further, however, that this indemnity agreement will be in addition to any liability which the Company Guarantor and the Issuer may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the CompanyGuarantor and the Issuer, each of its directors, officers, employees, representatives, agents and any person who controls the Company Guarantor and the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Guarantor Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Guarantor Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company Guarantor expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or arises out with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Guarantor shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), or is based upon any omission or alleged omission to state (C) a material fact necessary in order to make public sale of Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were mademost recent applicable Prospectus provided to such Holder by the Guarantor pursuant to Section 3(i) or Section 2(d)(i)(C), not misleading, provided the Guarantor shall have theretofore provided such Holder with copies of such Prospectus in connection with a timely manner so as to permit such informationdelivery; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company Guarantor and the Issuer for any legal or other expenses reasonably incurred by the Company Guarantor and the Issuer or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company Guarantor and the Issuer or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Guarantor and the Issuer, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Guarantor and the Issuer, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Guarantor and the Issuer, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company Guarantor and the Issuer or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The CompanyGuarantor, the Issuer, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the CompanyGuarantor, or the CompanyIssuer, or the Guarantor’s or the Issuer’s officers or directors or any person controlling the Company Guarantor or the Issuer and (iii) the sale of any Registrable Security by any Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Medical Properties Trust Inc), Registration Rights Agreement (Medical Properties Trust Inc)
Indemnification; Contribution. (a) The If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the Company agrees to indemnify, defend shall indemnify and hold harmless each Initial Purchaser, each Selling Holder, each personunderwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any Initial Purchaser and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. 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 (a “Controlling Person”Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the respective officersCompany, each of its directors, partnerseach of its officers who shall have signed the registration statement, employees, representatives and agents each Person who controls the Company within the meaning of the Initial PurchasersSecurities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the Holders meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any Controlling Person and all losses, claims, damages, liabilities and expenses (each, an “Indemnified Party”joint and several), from including attorneys’ fees and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost disbursements and expenses of investigation) , incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which such Indemnified Party any of the foregoing Persons may incur or otherwise become subject to under the Securities Act, the Exchange Act or otherwiseother federal or state laws, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities and expenses arise out of or is are based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusViolation, in each case solely to the light of the circumstances under which they were made, not misleading, extent that such Violation occurs in reliance upon and the Company shall reimburse, as incurred, the Indemnified Parties in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for any legal or other expenses reasonably incurred by them use in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereofregistration; provided, however, that (ix) insofar as the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such lossclaim, damage, expense, liability, claim liability or action of such Holder results from expense if settlement is effected without the fact that there was not sent or given to such person, at or prior to the written confirmation consent of the sale relevant Selling Holder of such Registrable Securities to such personSecurities, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided furtherwhich consent shall not be unreasonably withheld, howeverconditioned or delayed, that this indemnity agreement will be and (y) in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability amount of any selling Holder of Registrable Securities hereunder be greater in amount than indemnity under this Section 6.2 exceed the dollar amount of gross proceeds from the proceeds applicable offering received by such Holder upon the sale Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 of notice of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If commencement of any action, suit suit, proceeding, investigation or proceeding (each, threat thereof made in writing for which such indemnified party may make a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of claim under this Section 6, such person (indemnified party shall deliver to the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing indemnifying party a written notice of the institution of such Proceeding commencement thereof and the Indemnifying Party indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly given notice, to assume the defense of such Proceedingthereof with counsel reasonably satisfactory to the parties; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party an indemnified party shall have the right to employ its own retain separate counsel in any such caseaction, but claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel shall retained by the indemnifying party would be at the expense of inappropriate due to actual or potential differing interests between such Indemnified Party unless the employment of indemnified party and any other party represented by such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party proceeding (in which case the indemnifying party shall pay such Indemnifying Party fees and disbursements and expenses of the indemnified party and shall not have the right to direct that portion of assume the defense of such Proceeding action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the Indemnified Partyindemnifying party within a reasonable time following the commencement of any such action, but if and only to the extent prejudicial to the indemnifying party, shall relieve such Indemnifying Party may employ indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof but the fees with its own counsel and expenses of such counsel at its own expense. No indemnifying party shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable an indemnified party for any settlement of such Proceeding effected any action, proceeding or claim without the written consent of such Indemnifying Partythe indemnifying party, but if settled with which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of such Indemnifying Partythe indemnifying party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written which consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed be unreasonably withheld, conditioned or delayed, that does not include the giving to such Indemnified Party in accordance with such request prior to the date indemnified party of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding an unconditional release from all liability in respect of which such Indemnified Party is action, proceeding 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 claim or that are the subject matter of such Proceeding and does not include requires an admission of fault, culpability or a failure to act, wrongdoing by or on behalf of such Indemnified Partyany indemnified party.
(d) 6.4. If the indemnification provided for in required by this Section 6 from the indemnifying party is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 indemnified party hereunder in respect of any losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses referred to therein, then each applicable Indemnifying Partyin this Section 6:
(i) The indemnifying party, in lieu of indemnifying such Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand indemnifying party and of the Holders or the Initial Purchasers on the other indemnified parties in connection with the statements or omissions which actions that resulted in such losses, claims, damages, liabilities or expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of the Holders or any Initial Purchaser on the other indemnified parties shall be determined by reference to, among other things, whether the untrue statement any Violation has been committed by, or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company by, such indemnifying party or by the Holders or such Initial Purchaser indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, expenses, liabilities, claims liabilities and actions expenses referred to above shall be deemed to include include, subject to the limitations set forth in Section 6.1 and Section 6.2, any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any Proceedingproceeding.
(eii) The Company, the Holders and the Initial Purchasers parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6 6.4 were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission6.4(i). No person Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
6.5. The Holders’ respective obligations to contribute pursuant to If indemnification is available under this Section 6 are several in proportion 6, the indemnifying parties shall indemnify each indemnified party to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies full extent provided for in this Section 6 are not exclusive and shall not limit any rights without regard to the relative fault of such indemnifying party or remedies which may otherwise be available to any indemnified party at law or any other equitable consideration referred to in equitySection 6.4.
(f) 6.6. The indemnity obligations of the Company and contribution provisions contained in the Selling Holders of Registrable Securities under this Section 6 shall remain operative and in full force and effect regardless survive the completion of (i) any termination offering of Registrable Securities pursuant to a registration statement under this Agreement, (ii) any investigation made by or on behalf and otherwise until the expiration of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale applicable statute of any Registrable Security by any Holderlimitations.
Appears in 2 contracts
Sources: Registration Rights Agreement (Entercom Communications Corp), Stock Purchase Agreement (Entercom Communications Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend indemnify and hold harmless the Stockholders and each Initial Purchaser, each Holder, each personPerson, if any, who controls any Initial Purchaser or Holder the Stockholders within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Stockholder Indemnified PartyPerson”) from and against any and all loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, and damage, expenseas incurred, liability, claim or action arises arising out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement (or Prospectus, including any document incorporated by reference thereinamendment thereto), or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any Shelf Registration Statement preliminary prospectus or in any Prospectus (or any amendment or supplement thereto thereto) or necessary to make the statements therein not misleadingIssuer Free Writing Prospectus (or any amendment or supplement thereto), or arises out of or is based upon any the omission or alleged omission to state therefrom of a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectustherein, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject and agrees to the limitation set forth immediately preceding this clause, each Holder shall reimburse, reimburse any Stockholder Indemnified Person as incurred, the Company promptly as practicable upon demand for any legal or other expenses reasonably incurred by the Company or any such controlling person Stockholder Indemnified Person in connection with investigating investigating, defending or defending paying any such loss, claim, damage, expenseliability or action; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim or action damage to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in respect thereof. This indemnity agreement will be reliance upon and in addition to any liability which such Holder may otherwise have conformity with information furnished to the Company by or on behalf of the Stockholders or any Person, if any, who controls the Stockholders for use in any Registration Statement (or any amendment thereto), or any preliminary prospectus or Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto).
(b) The Stockholders agree, jointly and severally, to indemnify and hold harmless the Company, and each person, if any, who controls the Company within the meaning of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount either Section 15 of the proceeds received by such Holder upon the sale Securities Act or Section 20 of the Registrable Securities pursuant Exchange Act against any and all loss, liability, claim and damage described in the indemnity contained in subsection (a) of this Section 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in any Registration Statement (or any amendment thereto) or any preliminary prospectus or Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the Shelf Company by or on behalf of the Stockholders for use in the Registration Statement giving rise to (or any amendment thereto) or such indemnification obligationpreliminary prospectus or Prospectus (or any amendment or supplement thereto).
(c) If Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action, suit action or proceeding (each, a “Proceeding”) is brought commenced against any person it in respect of which indemnity may be sought pursuant hereunder, but failure to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly so notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party an indemnifying party shall not relieve such Indemnifying Party indemnifying party from any liability hereunder to the extent it is not prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of these indemnity provisions. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party or otherwise. Such Indemnified Party indemnified party (who shall have not, except with the right consent of the indemnified party, be counsel to employ the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its own counsel in election so to assume the defense thereof, such indemnifying party shall not be liable to such indemnified party under this Section 6 for any such case, but the fees and legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expenses, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settlethereof. No Indemnifying Party indemnifying party shall, without the prior written consent of any Indemnified Partythe indemnified parties, effect any settlement settle or compromise or consent to the entry of any pending judgment with respect to any litigation, or threatened Proceeding any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which such Indemnified Party indemnification or contribution is sought under this Section 6 (whether or could have been a party and indemnity could have been sought hereunder by such Indemnified Partynot the indemnified parties are actual or potential parties thereto), unless such settlement settlement, compromise or consent (i) includes an unconditional release of such Indemnified Party each indemnified party from all liability on claims that are the subject matter arising out of such Proceeding litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made act by or on behalf of any Holder or Initial Purchaser or indemnified party. No indemnified party shall, without the prior written consent of the indemnifying party, effect any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale settlement of any Registrable Security by commenced or threatened litigation, investigation, proceeding or claim in respect of which any Holderindemnification is sought hereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Stinehart William Jr), Registration Rights Agreement (Tribune Co)
Indemnification; Contribution. (a) The Company agrees agrees, to indemnifythe extent permitted by law, defend to indemnify and hold harmless each Initial Purchaser, Holder and each Holder, each personPerson, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act or otherwise (a “Controlling Person”) "Indemnified Holder"), and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, to reimburse the Holders and such controlling Person or Persons, if any, for any Controlling Person (eachlegal or other expenses incurred by them in connection with defending any action, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim suit or any actions in respect thereof proceeding (including the reasonable cost of investigationgovernmental investigations) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwiseas provided in Section 4(c) hereof, insofar as such losslosses, damageclaims, expensedamages, liabilityliabilities or actions, claim suits or action arises proceedings (including governmental investigations) arise out of or is are based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement, or, if any Shelf Registration Statement shall be amended or Prospectussupplemented, including any document incorporated by reference thereinin the Shelf Registration Statement as so amended or supplemented, or in any amendment or supplement thereto or in any preliminary prospectus, or arises arise out of or is are based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or arises actions arise out of or is are based upon any omission such untrue statement or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement omission which was made in the Shelf Registration Statement or omission of a material fact contained inin the Shelf Registration Statement as so amended or supplemented, or omitted from, in reliance upon and in conformity with information furnished in writing to the Company by any Holder expressly for use therein. The Company's indemnity agreement contained in this Section 4(a), and the covenants, representations and warranties of the Company contained in this Agreement, shall remain in full force and effect regardless of any investigation made by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein Person, and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) Section 4 shall not inure to the benefit survive any termination of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation this Agreement. The liabilities of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that in this indemnity agreement will be Section 4 are in addition to any liability which other liabilities of the Company may otherwise have to such Indemnified Partyunder this Agreement or otherwise.
(b) Each HolderHolder agrees, severally and not jointly, agrees to the extent permitted by law, to indemnify, defend and hold harmless and reimburse the CompanyCompany and each Person, its directorsif any, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, to the Exchange Act or otherwisesame extent and upon the same terms as the indemnity agreement of the Company set forth in Section 4(a) hereof, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or but only with respect to alleged untrue statement of a material fact contained statements or omissions made in the Shelf Registration Statement or in the Shelf Registration Statement, as amended or supplemented (if applicable), in reliance upon and in conformity with information furnished in writing to the Company by such Holder expressly for use therein. The indemnity agreement on the part of each Holder contained in this Section 4(b) shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any lossother Person, damage, expense, liability, claim or action in respect thereof. This and the indemnity agreement will be contained in addition to this Section 4(b) shall survive any liability which such Holder may otherwise have to the Company or any termination of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationthis Agreement.
(c) If any a claim is made or an action, suit or proceeding (each, a “Proceeding”including governmental investigations) is brought commenced or threatened against any person in respect of as to which indemnity may be sought pursuant to either subsection (aunder Section 4(a) or (b4(b) of this Section 6hereof, such person Person (the “"Indemnified Party”Person") shall promptly notify the person Person against whom such indemnity may be sought (the “"Indemnifying Party”Person") in writing promptly after any assertion of such claim threatening to institute an action, suit or proceeding or, if such an action, suit or proceeding is commenced against such Indemnified Person, promptly after such Indemnified Person shall have been served with a summons or other first legal process, giving information as to the nature and basis of the institution of such Proceeding and claim. Failure to so notify the Indemnifying Party Person shall assume the defense of such Proceeding; providednot, however, that relieve the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party Person from any liability which it may have on account of the indemnity under Section 4(a) or 4(b) hereof if the Indemnifying Person has not been prejudiced in any material respect by such failure. Subject to the immediately succeeding sentence, the Indemnifying Person shall assume the defense of any such litigation or proceeding, including the employment of counsel and the payment of all expenses, with such counsel being designated, subject to the immediately succeeding sentence, in writing by a majority in interest of the Holders in the case of parties indemnified pursuant to Section 4(b) hereof and by the Company in the case of parties indemnified pursuant to Section 4(a) hereof. Any Indemnified Party or otherwise. Such Indemnified Party Person shall have the right to employ participate in such litigation or proceeding and to retain its own counsel in any such casecounsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party Person unless (i) the employment Indemnifying Person and the Indemnified Person shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include (x) the Indemnifying Person and (y) the Indemnified Person and, in the written opinion of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or likely conflicts of interest between them, in either of which cases the reasonable fees and expenses of counsel (including disbursements) for such Indemnified Person shall be reimbursed by the Indemnifying Person to the Indemnified Person. If there is a conflict as described in clause (ii) above, and the Indemnified Persons have participated in the litigation or proceeding utilizing separate counsel whose fees and expenses have been authorized in writing reimbursed by such the Indemnifying Party in connection with Person, and the defense Indemnified Persons, or any of such Proceeding or such Indemnifying Party shall not have employed counsel them, are found to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or be solely liable, such Indemnified Party Person shall have reasonably concluded upon repay to the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to Indemnifying Parties such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such separate counsel as the Indemnifying Person shall be at have reimbursed. It is understood that the expense of such Indemnifying Party)Person shall not, in connection with any of litigation or proceeding or related litigation or proceedings in the same jurisdiction as to which events the Indemnified Persons are entitled to such separate representation, be liable under this Agreement for the reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the out-of-pocket expenses of more than one separate counsel in any one Proceeding or series of related Proceedings firm (together with reasonably necessary not more than one appropriate local counsel representing counsel) for all such Indemnified Persons. Subject to the next paragraph, all such fees and expenses shall be reimbursed by payment to the Indemnified Parties who are parties Persons of such reasonable fees and expenses of counsel promptly after payment thereof by the Indemnified Persons. In furtherance of the requirement above that fees and expenses of any separate counsel for the Indemnified Persons shall be reasonable, the Holders and the Company agree that the Indemnifying Person's obligations to pay such actionfees and expenses shall be conditioned upon the following:
(1) in case separate counsel is proposed to be retained by the Indemnified Persons pursuant to clause (ii) of the preceding paragraph, the Indemnified Persons shall in good faith fully consult with the Indemnifying Person in advance as to the selection of such counsel;
(2) reimbursable fees and expenses of such separate counsel shall be detailed and supported in a manner reasonably acceptable to the Indemnifying Person (but nothing herein shall be deemed to require the furnishing to the Indemnifying Person of any information, including, without limitation, computer print-outs of lawyers' daily time entries, to the extent that, in the judgment of such counsel, furnishing such information might reasonably be expected to result in a waiver of any attorney-client privilege); and
(3) the Company and the Holders shall cooperate in monitoring and controlling the fees and expenses of separate counsel for Indemnified Persons for which the Indemnifying Person is liable hereunder, and the Indemnified Person shall use every reasonable effort to cause such separate counsel to minimize the duplication of activities as between themselves and counsel to the Indemnifying Person. An The Indemnifying Party Person shall not be liable for any settlement of such Proceeding any litigation or proceeding effected without the written consent of such the Indemnifying PartyPerson, but if settled with such consent or if there be a final judgment against the written consent Indemnified Person, the Indemnifying Person agrees, subject to the provisions of such Indemnifying Partythis Section 4, such Indemnifying Party agrees to indemnify and hold harmless an the Indemnified Party Person from and against any loss loss, damage, liability or liability expenses by reason of such settlementsettlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party The Indemnifying Person shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shallnot, without the prior written consent of any the Indemnified PartyPersons, effect any settlement of any pending or threatened Proceeding litigation, proceeding or claim in respect of which such indemnity has been properly sought by the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified PartyPersons hereunder, unless such settlement includes an unconditional release by the claimant of such all Indemnified Party Persons from all liability on with respect to claims that which are the subject matter of such Proceeding and does not include an admission of faultlitigation, culpability proceeding or a failure to act, by or on behalf of such Indemnified Partyclaim.
(d) If the indemnification provided for in this Section 6 4 is unavailable to or insufficient to hold harmless an Indemnified Party Person under subsections (a) and (b) of this Section 6 4 in respect of any losses, damagesclaims, expensesdamages or liabilities (or actions, liabilities, claims suits or actions proceedings (including governmental investigations) in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, Person under this Section 4 shall contribute to the amount paid or payable by such Indemnified Party Person as a result of such losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company Indemnifying Person on the one hand and the Holders or the Initial Purchasers Indemnified Person on the other hand from the offering sale of the Registrable Securities or (ii) if Securities. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each Indemnifying Person shall contribute to such amount paid or payable by such Indemnified Person in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company each Indemnifying Person, if any, on the one hand and of the Holders or the Initial Purchasers Indemnified Person on the other in connection with the statements or omissions which resulted in such losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions, suits or proceedings (including governmental investigations) in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by the Holders or such Initial Purchaser on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims Company and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in subsection this Section 4. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages or liabilities (dor actions, suits or proceedings (including governmental proceedings) abovein respect thereof) referred to in this Section 4 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Person in connection with investigating or defending any such actions, suits or proceedings (including governmental proceedings) or claims, provided that the provisions of this Section 4 have been complied with (in all material respects) in respect of any separate counsel for such Indemnified Person. Notwithstanding the provisions of this Section 64, no Holder shall be required to contribute any amount in greater than the excess of the amount by which the total price at which received by such Holder with respect to the sale of its Registrable Securities sold pursuant to a Shelf Registration Statement exceeds the sum of (A) the amount paid by it were offered to the public exceeds such Holder for such Registrable Securities plus (B) the amount of any damages which it such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective ' obligations in this Section 4 to contribute pursuant to this Section 6 are several in proportion to the their respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, obligations and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available agreement with respect to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 4 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser the Company or any person controlling Holder, and shall survive any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale termination of any Registrable Security by any Holderthis Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (CMS Energy Corp), Purchase Agreement (CMS Energy Corp)
Indemnification; Contribution. (a) The Company agrees and the Guarantors severally agree to indemnify, defend indemnify and hold harmless each Initial PurchaserHolder and its directors, each Holderofficers, employees, members, representatives and agents and each person, if any, who controls any Initial Purchaser or Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”a "HOLDER INDEMNIFIED PARTY"), from and against (i) any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, as incurred, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) except insofar as any such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information required to be included in any Shelf Registration Statement or the related Prospectus pursuant the Securities Act furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and Company, (ii) with respect any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission omission, or any such alleged untrue statement or omission made omission; provided that any such settlement is effected with the written consent of the Company; and (iii) any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that as to any preliminary prospectus relating to a Shelf Registration Statementprospectus, the this indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder Indemnified Party on account of any loss, claim, damage, liability or action arising from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased sale of the Registrable Securities concerned, sold pursuant to the extent that a prospectus relating Shelf Registration Statement to such Registrable Securities was required to be delivered any person by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact Indemnified Party if (i) that there was not sent Holder Indemnified Party failed to send or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, give a copy of the final prospectus if Prospectus, as the same may be amended or supplemented, to that person within the time required by the Securities Act (other than as a result of a failure by the Company had previously furnished to timely deliver copies thereof of the Prospectus to such Holder; provided furtherHolder Indemnified Party) and (ii) the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such preliminary prospectus was corrected in the Prospectus or a supplement or amendment thereto, however, that this as the case may be. This indemnity agreement will be in addition to any liability which that the Company or any Guarantor may otherwise have to such Indemnified Partyhave.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the CompanyCompany and the Guarantors, its and their directors, officers, employees, representativesmembers, representatives and agents and any person each person, if any, who controls the Company or any Guarantor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”"COMPANY INDEMNIFIED PARTY") from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use required to be included in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectusthe related Prospectus pursuant the Securities Act, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; andprovided, subject to the limitation set forth immediately preceding this clausehowever, each that no such Holder shall reimburse, as incurred, the Company be liable for any legal or other expenses reasonably incurred by claims hereunder in excess of the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon from the sale of the Registrable Securities pursuant to the such Shelf Registration Statement giving rise to such indemnification obligationStatement.
(c) If any action, suit or proceeding (each, a “Proceeding”"PROCEEDING") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”"INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”"INDEMNIFYING PARTY") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such ProceedingProceeding with counsel reasonably satisfactory to the Indemnified Party and shall pay the fees and expenses of such counsel; provided, however, that failure to so notify the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may otherwise have to such Indemnified Party or otherwisethan on account of this indemnity agreement. Such Indemnified Party shall have the right to employ its own counsel in any such casecounsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the employment Indemnified Party is a Holder of such counsel shall have been authorized in writing by such Notes representing not less than 33% of the aggregate principal amount of the then outstanding Notes, (ii) the Indemnifying Party in connection with and the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon mutually agreed to the written advice of counsel that there may be one or more defenses available to it that are different fromcontrary, additional to or in conflict with those available to such (iii) the Indemnifying Party has failed within a reasonable time after receipt of notice to assume defense of a Proceeding to retain counsel reasonably satisfactory to the Indemnified Party or (iv) the named parties in which case any such Proceeding (including any impleaded parties) include both the Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of and the Indemnified Party, but such the Indemnifying Party may employ proposes to have the same counsel represent it and participate the Indemnified Party, and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnifying Party may, in connection with any Proceeding or related Proceeding in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party)same jurisdiction, in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate counsel firm (in addition to any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the counsel) for all Indemnified Parties who are parties in accordance with the foregoing sentence, and that all such fees and expenses actually incurred shall be promptly reimbursed as incurred upon delivery to the Indemnifying Party of reasonable documentation therefor setting forth such action)expenses in reasonable detail. An The Indemnifying Party shall not be liable for any settlement of such any Proceeding effected without the its written consent of such Indemnifying Partyconsent, but if settled with such consent or if there be a final judgment for the written consent of such Indemnifying Partyplaintiff, such the Indemnifying Party agrees to indemnify and hold harmless an any Indemnified Party from and against any loss or liability by reason of such settlementsettlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an the Indemnifying Party to reimburse such the Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such the Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such the Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party indemnifying party shall not have reimbursed such the Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ ' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any the Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyparty, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an without admission of fault, culpability or a failure to act, fault by or on behalf of such the Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilitiesliabilities or claims, claims or actions as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. Notwithstanding the provisions of this Section 6, neither any of the Purchasers nor any Holder shall be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such Holder or Purchaser, as the case may be, exceeds the amount of any damages that such Holder or Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Guarantors and the Initial Purchasers Holders agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder Holder, or Initial Purchaserthe Company or Guarantors, or the Company, 's or the Company’s any Guarantor's officers or directors or any person controlling the Company or any Guarantor and (iii) the sale of any Registrable Security by any Holder.
(g) Section 6 of this Agreement may not be amended except by an instrument in writing signed by the Indemnified Party affected hereto.
Appears in 2 contracts
Sources: Registration Rights Agreement (Integrated Electrical Services Inc), Purchase Agreement (Integrated Electrical Services Inc)
Indemnification; Contribution. (a) The Company agrees agrees, to indemnifythe extent permitted by law, defend to indemnify and hold harmless each Initial Purchaser, Holder and each Holder, each personPerson, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act or otherwise (a “Controlling Person”) "Indemnified Holder"), and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, to reimburse the Holders and such controlling Person or Persons, if any, for any Controlling Person (eachlegal or other expenses incurred by them in connection with defending any action, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim suit or any actions in respect thereof proceeding (including the reasonable cost of investigationgovernmental investigations) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwiseas provided in Section 4(c) hereof, insofar as such losslosses, damageclaims, expensedamages, liabilityliabilities or actions, claim suits or action arises proceedings (including governmental investigations) arise out of or is are based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement, or, if any Shelf Registration Statement shall be amended or Prospectussupplemented, including any document incorporated by reference thereinin the Shelf Registration Statement as so amended or supplemented, or in any amendment or supplement thereto or in any preliminary prospectus, or arises arise out of or is are based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or arises actions arise out of or is are based upon any omission such untrue statement or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement omission which was made in the Shelf Registration Statement or omission of a material fact contained inin the Shelf Registration Statement as so amended or supplemented, or omitted from, in reliance upon and in conformity with information furnished in writing to the Company by any Holder expressly for use therein. The Company's indemnity agreement contained in this Section 4(a), and the covenants, representations and warranties of the Company contained in this Agreement, shall remain in full force and effect regardless of any investigation made by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein Person, and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) Section 4 shall not inure to the benefit survive any termination of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation this Agreement. The liabilities of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that in this indemnity agreement will be Section 4 are in addition to any liability which other liabilities of the Company may otherwise have to such Indemnified Partyunder this Agreement or otherwise.
(b) Each HolderHolder agrees, severally and not jointly, agrees to the extent permitted by law, to indemnify, defend and hold harmless and reimburse the CompanyCompany and each Person, its directorsif any, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, to the Exchange Act or otherwisesame extent and upon the same terms as the indemnity agreement of the Company set forth in Section 4(a) hereof, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or but only with respect to alleged untrue statement of a material fact contained statements or omissions made in the Shelf Registration Statement or in the Shelf Registration Statement, as amended or supplemented (if applicable), in reliance upon and in conformity with information furnished in writing to the Company by such Holder expressly for use therein. The indemnity agreement on the part of each Holder contained in this Section 4(b) shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any lossother Person, damage, expense, liability, claim or action in respect thereof. This and the indemnity agreement will be contained in addition to this Section 4(b) shall survive any liability which such Holder may otherwise have to the Company or any termination of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationthis Agreement.
(c) If any a claim is made or an action, suit or proceeding (each, a “Proceeding”including governmental investigations) is brought commenced or threatened against any person in respect of as to which indemnity may be sought pursuant to either subsection (aunder Section 4(a) or (b4(b) of this Section 6hereof, such person Person (the “"Indemnified Party”Person") shall promptly notify the person Person against whom such indemnity may be sought (the “"Indemnifying Party”Person") in writing promptly after any assertion of such claim threatening to institute an action, suit or proceeding or, if such an action, suit or proceeding is commenced against such Indemnified Person, promptly after such Indemnified Person shall have been served with a summons or other first legal process, giving information as to the nature and basis of the institution of such Proceeding and claim. Failure to so notify the Indemnifying Party Person shall assume the defense of such Proceeding; providednot, however, that relieve the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party Person from any liability which it may have on account of the indemnity under Section 4(a) or 4(b) hereof if the Indemnifying Person has not been prejudiced in any material respect by such failure. Subject to the immediately succeeding sentence, the Indemnifying Person shall assume the defense of any such litigation or proceeding, including the employment of counsel and the payment of all expenses, with such counsel being designated, subject to the immediately succeeding sentence, in writing by a majority in principal amount of the Holders in the case of parties indemnified pursuant to Section 4(b) hereof and by the Company in the case of parties indemnified pursuant to Section 4(a) hereof. Any Indemnified Party or otherwise. Such Indemnified Party Person shall have the right to employ participate in such litigation or proceeding and to retain its own counsel in any such casecounsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party Person unless (i) the employment Indemnifying Person and the Indemnified Person shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include (x) the Indemnifying Person and (y) the Indemnified Person and, in the written opinion of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or likely conflicts of interest between them, in either of which cases the reasonable fees and expenses of counsel (including disbursements) for such Indemnified Person shall be reimbursed by the Indemnifying Person to the Indemnified Person. If there is a conflict as described in clause (ii) above, and the Indemnified Persons have participated in the litigation or proceeding utilizing separate counsel whose fees and expenses have been authorized in writing reimbursed by such the Indemnifying Party in connection with Person, and the defense Indemnified Persons, or any of such Proceeding or such Indemnifying Party shall not have employed counsel them, are found to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or be solely liable, such Indemnified Party Person shall have reasonably concluded upon repay to the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to Indemnifying Parties such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such separate counsel as the Indemnifying Person shall be at have reimbursed. It is understood that the expense of such Indemnifying Party)Person shall not, in connection with any of litigation or proceeding or related litigation or proceedings in the same jurisdiction as to which events the Indemnified Persons are entitled to such separate representation, be liable under this Agreement for the reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the out-of-pocket expenses of more than one separate counsel in any one Proceeding or series of related Proceedings firm (together with reasonably necessary not more than one appropriate local counsel representing counsel) for all such Indemnified Persons. Subject to the next paragraph, all such fees and expenses shall be reimbursed by payment to the Indemnified Parties who are parties Persons of such reasonable fees and expenses of counsel promptly after payment thereof by the Indemnified Persons. In furtherance of the requirement above that fees and expenses of any separate counsel for the Indemnified Persons shall be reasonable, the Holders and the Company agree that the Indemnifying Person's obligations to pay such actionfees and expenses shall be conditioned upon the following:
(1) in case separate counsel is proposed to be retained by the Indemnified Persons pursuant to clause (ii) of the preceding paragraph, the Indemnified Persons shall in good faith fully consult with the Indemnifying Person in advance as to the selection of such counsel;
(2) reimbursable fees and expenses of such separate counsel shall be detailed and supported in a manner reasonably acceptable to the Indemnifying Person (but nothing herein shall be deemed to require the furnishing to the Indemnifying Person of any information, including, without limitation, computer print-outs of lawyers' daily time entries, to the extent that, in the judgment of such counsel, furnishing such information might reasonably be expected to result in a waiver of any attorney-client privilege); and
(3) the Company and the Holders shall cooperate in monitoring and controlling the fees and expenses of separate counsel for Indemnified Persons for which the Indemnifying Person is liable hereunder, and the Indemnified Person shall use every reasonable effort to cause such separate counsel to minimize the duplication of activities as between themselves and counsel to the Indemnifying Person. An The Indemnifying Party Person shall not be liable for any settlement of such Proceeding any litigation or proceeding effected without the written consent of such the Indemnifying PartyPerson, but if settled with such consent or if there be a final judgment against the written consent Indemnified Person, the Indemnifying Person agrees, subject to the provisions of such Indemnifying Partythis Section 4, such Indemnifying Party agrees to indemnify and hold harmless an the Indemnified Party Person from and against any loss loss, damage, liability or liability expenses by reason of such settlementsettlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party The Indemnifying Person shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shallnot, without the prior written consent of any the Indemnified PartyPersons, effect any settlement of any pending or threatened Proceeding litigation, proceeding or claim in respect of which such indemnity has been properly sought by the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified PartyPersons hereunder, unless such settlement includes an unconditional release by the claimant of such all Indemnified Party Persons from all liability on with respect to claims that which are the subject matter of such Proceeding and does not include an admission of faultlitigation, culpability proceeding or a failure to act, by or on behalf of such Indemnified Partyclaim.
(d) If the indemnification provided for in this Section 6 4 is unavailable to or insufficient to hold harmless an Indemnified Party Person under subsections (a) and (b) of this Section 6 4 in respect of any losses, damagesclaims, expensesdamages or liabilities (or actions, liabilities, claims suits or actions proceedings (including governmental investigations) in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, Person under this Section 4 shall contribute to the amount paid or payable by such Indemnified Party Person as a result of such losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company Indemnifying Person on the one hand and the Holders or the Initial Purchasers Indemnified Person on the other hand from the offering sale of the Registrable Securities or (ii) if Securities. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each Indemnifying Person shall contribute to such amount paid or payable by such Indemnified Person in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company each Indemnifying Person, if any, on the one hand and of the Holders or the Initial Purchasers Indemnified Person on the other in connection with the statements or omissions which resulted in such losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions, suits or proceedings (including governmental investigations) in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by the Holders or such Initial Purchaser on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims Company and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in subsection this Section 4. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages or liabilities (dor actions, suits or proceedings (including governmental proceedings) abovein respect thereof) referred to in this Section 4 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Person in connection with investigating or defending any such actions, suits or proceedings (including governmental proceedings) or claims, provided that the provisions of this Section 4 have been complied with (in all material respects) in respect of any separate counsel for such Indemnified Person. Notwithstanding the provisions of this Section 64, no Holder shall be required to contribute any amount in greater than the excess of the amount by which the total price at which received by such Holder with respect to the sale of its Registrable Securities sold pursuant to a Shelf Registration Statement exceeds the sum of (A) the amount paid by it were offered to the public exceeds such Holder for such Registrable Securities plus (B) the amount of any damages which it such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective ' obligations in this Section 4 to contribute pursuant to this Section 6 are several in proportion to the their respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, obligations and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available agreement with respect to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 4 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser the Company or any person controlling Holder, and shall survive any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale termination of any Registrable Security by any Holderthis Agreement.
Appears in 2 contracts
Sources: Purchase Agreement (CMS Energy Corp), Registration Rights Agreement (CMS Energy Corp)
Indemnification; Contribution. (a) The Company agrees to shall indemnify, defend and hold harmless each Initial Purchaserto the fullest extent permitted by law, each Holderholder of Registrable Securities, its officers, directors, partners, employees and agents, if any, and each personPerson, if any, who controls any Initial Purchaser or Holder such holder within the meaning of Section 15 of the Securities Act Act, against all losses, claims, damages, liabilities (or Section 20 of the Exchange Act (a “Controlling Person”proceedings in respect thereof) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person expenses (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or common law or otherwise), insofar as such lossjoint or several, damage, expense, liability, claim resulting from any violation by the Company of the provisions of the Securities Act or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement registration statement or Prospectus, including any document incorporated by reference therein, prospectus (and as amended or in any amendment supplemented if amended or supplement thereto supplemented) or in any preliminary prospectus, prospectus or arises out of or is based upon caused by any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, 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 II 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 II 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 herein before provided with respect to the indemnification of the holders of Registrable Securities; provided that the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending 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, expense, liability, claim liability (or action proceedings in respect thereof; provided, however, that (i) insofar as any or expense for which indemnification is claimed results from such loss, damage, expense, liability, claim underwriter's failure to send or action arises out give a copy of an amended or is based upon any supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the Person if such statement or omission was corrected in such amended or supplemented final prospectus if the Company had previously furnished copies thereof prior to such Holder; written confirmation and the underwriter was provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have with such amended or supplemented final prospectus a reasonable time prior to such Indemnified Partywritten confirmation.
(b) Each HolderIn connection with any registration statement in which a holder of Registrable Securities is participating, each such holder, severally and not jointly, agrees to shall indemnify, defend and hold harmless to the fullest extent permitted by law, the Company, its each underwriter and their respective officers, directors, officersemployees and agents, employeesif any, representativesand each Person, agents and any person if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachAct, a “Company Indemnified Party”) from and against any losslosses, damageclaims, expensedamages, liability, claim liabilities (or any actions proceedings in respect thereof (including the reasonable cost of investigationthereof) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinfact, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state of a material fact required to be stated in any Shelf Registration Statement the registration statement or in prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, in connection with such information; and, subject but only to the limitation set forth immediately preceding this clause, each Holder extent that such untrue statement is contained in or such omission is from information so concerning a holder furnished in writing by such holder expressly for use therein; provided that such holder's obligations hereunder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition limited to any liability which such Holder may otherwise have an amount equal to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds received by to such Holder upon the sale holder of the Registrable Securities sold pursuant to the Shelf Registration Statement giving rise to such indemnification obligationregistration statement.
(c) If Any Person entitled to indemnification under the provisions of this Section 2.7 shall (i) give prompt notice to the indemnifying party of any action, suit or proceeding claim with respect to which it seeks indemnification and (each, ii) unless in such indemnified party's reasonable judgment a “Proceeding”) is brought against any person conflict of interest between such indemnified and indemnifying parties may exist in respect of which indemnity may be sought pursuant such claim, permit such indemnifying party to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingclaim, with counsel reasonably satisfactory to the indemnified party; providedand if such defense is so assumed, however, that the omission to notify such Indemnifying Party indemnifying party shall not relieve enter into any settlement without the consent of the indemnified party if such Indemnifying Party from settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any liability for any settlement made without its consent (which it may have shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article II shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such Indemnified Party or otherwise. Such Indemnified Party indemnifying party shall have the right not be obligated to employ its own counsel in any such case, but pay the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses firm of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt all parties indemnified by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding indemnifying party in respect of which such Indemnified Party is or could have been claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release any other of such Indemnified Party from all liability on claims that are the subject matter of indemnified parties in respect to such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyclaim.
(d) If for any reason the indemnification provided for in this Section 6 foregoing indemnity is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to thereinunavailable, then each applicable Indemnifying Party, in lieu of the indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company fault of such indemnifying party on the one hand and the Holders or the Initial Purchasers indemnified party on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) aboveother. Notwithstanding the provisions of this Section 6foregoing, no Holder holder of Registrable Securities shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise such holder would have been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionto an indemnified party if the indemnity under Section 2.7(b) was available. No person Person guilty of fraudulent misrepresentation (within the meaning of Section section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations obligation of any Person to contribute pursuant to this Section 6 are 2.7 shall be several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in .
(e) An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 6 are not exclusive and shall not limit any rights 2.7 to or remedies which may otherwise be available to any for the account of the indemnified party at law from time to time promptly upon receipt of bills or in equityinvoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution provisions agreements contained in this Section 6 2.7 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser a participating holder of Registrable Securities, its officers, directors, agents or any person controlling Person, if any, who controls such holder as aforesaid, and shall survive the Transfer of Registrable Securities by such holder and the termination of this Agreement for any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holderreason.
Appears in 2 contracts
Sources: Registration Rights Agreement (Global Power Equipment Group Inc/), Registration Rights Agreement (Global Power Equipment Group Inc/)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend indemnify and hold harmless each Initial Purchaser, each Holder, the Affiliates, directors, officers, employees, members, managers and agents of each person, if any, such Holder and each Person who controls any Initial Purchaser or such Holder within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and Act, to the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”)fullest extent permitted by applicable law, from and against any lossand all losses, damageclaims, expensedamages, liability, claim liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof (including the reasonable cost of investigationthereof) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arise out of or is are based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf a Registration Statement as originally filed or Prospectusin any amendment thereof, including or the Disclosure Package, or any document incorporated by reference thereinpreliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission and agrees to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimbursereimburse each such indemnified party, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, expense, liability, claim liability or action in respect thereof(whether or not the indemnified party is a party to any proceeding); provided, however, that (i) insofar as the Company will not be liable in any case to the extent that any such loss, claim, damage, expense, liability, claim liability or action expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, made therein in reliance upon and in conformity with written information furnished in writing to the Company by or on behalf of any Initial Purchaser such Holder specifically for inclusion therein including, without limitation, any notice or Holder to the Company expressly for use therein and questionnaire, or (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit out of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the sales of Registrable Securities concerned, made during a Suspension Period after notice is given pursuant to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this Section 2(b). This indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyhave.
(b) Each Holder, Holder severally (and not jointly, ) agrees to indemnify, defend indemnify and hold harmless the CompanyCompany and each of its Affiliates, its directors, officers, employees, representativesmembers, managers and agents and any person each Person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act (eachAct, a “Company Indemnified Party”) to the fullest extent permitted by applicable law, from and against any lossand all losses, damageclaims, expense, liability, claim damages or liabilities to which they or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party them may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities arise out of or is are based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by a Registration Statement as originally filed or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, including preliminary, final or summary Prospectus included in any document incorporated by reference thereinsuch Registration Statement, or in any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that any such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements is contained in any Prospectus written information relating to such Holder furnished to the Company by or in any amendment or supplement thereto or in any preliminary prospectuson behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the gross proceeds (before deducting underwriters’ discounts and commissions) received by such Holder in the light of the circumstances under offering to which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal Registration Statement or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereofProspectus relates. This indemnity agreement will be in addition to any liability which any such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationhave.
(c) If Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, suit or proceeding (eachsuch indemnified party will, if a “Proceeding”) is brought against any person claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of which indemnity may be sought pursuant the commencement thereof; but the failure so to either subsection notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of this Section 6substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such person indemnified party (who shall not, except with the “Indemnified Party”consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified parties shall collectively have the right to employ their own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall promptly notify the person against whom such indemnity have reasonably concluded that there may be sought legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the “Indemnifying Party”) in writing indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such Proceeding and action; or (iv) the Indemnifying Party indemnifying party shall assume authorize the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right indemnified party to employ its own separate counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge same jurisdiction arising out of the defense of such Proceeding within 30 days of the receipt of notice thereof same general circumstances or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different fromallegations, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate counsel firm of attorneys (in addition to any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action)counsel) for all indemnified parties. An Indemnifying Party indemnifying party shall not be liable for under this Section 8 to any indemnified party regarding any settlement of such Proceeding effected without or compromise or consent to the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement entry of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance judgment with such request prior respect to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding claim, action, suit or proceeding in respect of which such Indemnified Party is indemnification or could have been a party and indemnity could have been contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such Indemnified Partyindemnifying party. No indemnifying party, unless in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement includes or compromise that does not include as an unconditional term thereof the giving by the claimant or plaintiff therein, to such indemnified party, of a full and final release of such Indemnified Party from all liability on claims that are the subject matter of in respect to such Proceeding and does not include an admission of fault, culpability claim or a failure to act, by or on behalf of such Indemnified Partylitigation.
(d) If In the indemnification event that the indemnity provided for in this Section 6 8(a) or Section 8(b) is unavailable to or insufficient to hold harmless an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of indemnified party for any losses, damages, expenses, liabilities, claims or actions referred to thereinreason, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall party agrees to contribute to the amount paid or payable by such Indemnified Party as a result of such aggregate losses, damagesclaims, expensesdamages and liabilities (including, liabilitieswithout limitation, claims legal or actions other expenses reasonably incurred in connection with investigating or defending same) (icollectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company indemnifying party on the one hand and by the Holders or the Initial Purchasers indemnified party on the other hand from the offering of the Registrable Securities or (ii) if INSW Common Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company indemnifying party on the one hand and of the Holders or the Initial Purchasers indemnified party on the other in connection with the statements or omissions which resulted in such losses, damagesclaims, expenses, liabilities, claims damages or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company indemnifying party on the one hand or by the Holders or such Initial Purchaser indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers parties agree that it would not be just and equitable if contribution pursuant to this Section 6 8(d) were determined by pro rata allocation (even if the Holders or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in subsection this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (dor actions in respect thereof) abovereferred to above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 68(d), no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to For purposes of this Section 6 are several 8, each Person who controls any Holder, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in proportion each case to the respective amount applicable terms and conditions of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity8(d).
(fe) The indemnity and contribution provisions contained in of this Section 6 shall 8 will remain operative and in full force and effect effect, regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser the Company or any person controlling any Holder or Initial Purchaserof the officers, or the Company, or the Company’s officers or directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any person controlling indemnification by an indemnifying party is prohibited or limited by law, the Company and indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (iiii) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Security Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any Holderseller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (International Seaways, Inc.), Registration Rights Agreement (International Seaways, Inc.)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserholder and each affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, each Holder, each person, if any, who controls or under any Initial Purchaser Blue Sky Law or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and regulation against any losslosses, damageclaims, expensedamages, liabilityor liabilities, claim joint or any actions in respect thereof (including the reasonable cost of investigation) several, to which such Indemnified Party holder may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectuspreliminary prospectus, including any document incorporated by reference thereinregistration statement, prospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each such holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, damage, expense, liability, action or claim regardless of the negligence of any such holder or action in respect thereofaffiliate; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense, liability, claim or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained registration statement or prospectus, or any such amendment or supplement thereto, in this subsection (a) shall not inure reliance upon and in conformity with written information furnished to the benefit of any Holder from whom the person asserting Company by any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyholder expressly for use therein.
(b) Each Holder, severally and not jointly, agrees holder of Common Stock registered pursuant to indemnify, defend this Agreement will indemnify and hold harmless the CompanyCompany against any losses, its directorsclaims, officersdamages, employees, representatives, agents and any person who controls or liabilities to which the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachmay become subject, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary prospectus, registration statement or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or was made in any preliminary prospectus, in the light of the circumstances under which they were maderegistration statement or prospectus, not misleadingor any amendment or supplement thereto, in connection reliance upon and in conformity with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have written information furnished to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationholder expressly for use therein.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aPromptly after receipt by an indemnified party under Sections 7(a) or (b) above of this Section 6the commencement of any action, such person (indemnified party shall, if a claim in respect thereof is to be made against the “Indemnified Party”) shall promptly indemnifying party under either such subsection, notify the person against whom such indemnity may be sought (the “Indemnifying Party”) indemnifying party in writing of the institution commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability that it may otherwise have to any indemnified party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of such Proceeding and the Indemnifying Party commencement thereof the indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After notice from the indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from subsections for any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expense, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense thereof other than reasonable costs of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as investigation incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without assumption by the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyindemnifying party, unless such settlement includes an unconditional release expenses have been specifically authorized in writing by the indemnifying party, 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 Indemnified Party from all liability on claims that are indemnified party and the subject matter indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them, in each of such Proceeding and does not include an admission which cases the fees of fault, culpability or a failure to act, counsel for the indemnified party will be paid by or on behalf of such Indemnified Partythe indemnifying party.
(d) If the indemnification provided for in this Section 6 7 is unavailable or insufficient to hold harmless an Indemnified Party indemnified party under subsections (aSection 7(a) and (bor 7(b) of this Section 6 in respect of any losses, claims, damages, expenses, liabilities, claims or actions liabilities (or action in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders holder or the Initial Purchasers on the other hand holders from this Agreement and from the offering of the Registrable Securities or (ii) if shares of Common Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other holders in connection with the statements statement or omissions which that resulted in such losses, claims, damages, expenses, liabilities, claims or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders or such Initial Purchaser holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers holders agree that it would not be just and equitable if contribution pursuant to this Section 6 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 of allocation which that does not take into account of 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) above. Notwithstanding the provisions of referred to above in this Section 6, no Holder 7(d) shall be required deemed to contribute include any amount legal or other expenses reasonably incurred by such indemnified party in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of connection with investigation or defending any damages which it has otherwise been required to pay by reason of such untrue action or alleged untrue statement or omission or alleged omissionclaim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for Notwithstanding any provision in this Section 6 are not exclusive and 7(d) to the contrary, no holder shall not limit be liable for any rights 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 remedies which may otherwise be available to any indemnified party at law or in equityliabilities.
(fe) The indemnity and contribution provisions contained in obligations of the Company under this Section 6 7 shall remain operative and be in full force and effect regardless of (i) addition to any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling liability that the Company may otherwise have and (iii) shall extend, upon the sale 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 Security 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 agrees to indemnify, defend and hold harmless each Initial Purchaser, Holder and each Holder, each person, if any, person who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Holder Indemnified Party”), from and against any loss, damage, expense, liability, judgment or claim or any actions in respect thereof (including the reasonable cost of investigationlegal fees, investigation costs and other expenses) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, judgment or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) except insofar as any such loss, damage, expense, liability, judgment or claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partytherein.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) to the same extent as the foregoing indemnity from and against any lossthe Company to each Holder Indemnified Party, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, but only insofar as such loss, damage, expense, liability, judgment or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 67, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 7 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 7 in respect of any losses, damages, expenses, liabilities, judgments or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, liabilities or claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, judgments and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 67, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 7 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 7 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cooper Cameron Corp), Registration Rights Agreement (Cameron International Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserholder of Warrant Stock registered pursuant to this Agreement with the Commission, each Holderor under any blue sky law or regulation, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any losslosses, damageclaims, expensedamages or liabilities, liabilityjoint or several, claim or any actions in respect thereof (including the reasonable cost of investigation) to which such Indemnified Party holder may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as but only to the extent that such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement preliminary prospectus, registration statement, prospectus or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each such holder for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, damage, expense, liability, claim action or action in respect thereofclaim; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, damageclaim, expense, liability, claim damage or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained inmade in any such document, or omitted from, in reliance upon and in conformity with written information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company by any holder expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.therein
(b) Each Holder, severally and not jointly, agrees holder of Common Stock registered pursuant to indemnify, defend this Agreement will indemnify and hold harmless the CompanyCompany against any and all losses, its directorsclaims, officers, employees, representatives, agents and any person who controls damages or liabilities to which the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachmay become subject, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary prospectus, registration statement or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements was made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectussuch document, in the light of the circumstances under which they were made, not misleading, reliance upon and in connection conformity with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have written information furnished to the Company by such holder expressly for use therein, or in a document to be filed with the Commission or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationstate securities commission.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection Promptly after receipt by an indemnified party under subsections (a) or (b) of this Section 616 of notice of the commencement of any action, such person (indemnified party shall, if a claim in respect thereof is to be made against the “Indemnified Party”) shall promptly indemnifying party under either such subsection, notify the person against whom such indemnity may be sought (the “Indemnifying Party”) indemnifying party in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingcommencement thereof; provided, however, that but the omission so to notify such Indemnifying Party the indemnifying party shall not relieve such Indemnifying Party it from any liability which it may have to any indemnified party otherwise than under either of such Indemnified Party or otherwisesubsections. Such Indemnified Party shall have the right to employ its own counsel in In case any such caseaction shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, but the fees and indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After receipt of written notice from the indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such subsections for any legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expenses, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense thereof other than reasonable costs of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as investigation incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without assumption by the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyindemnifying party.
(d) If the indemnification provided for in this Section 6 16 is unavailable or insufficient to hold harmless an Indemnified Party indemnified party under subsections subsection (a) and or (b) of this Section 6 above in respect of any losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders holder or the Initial Purchasers on the other hand holders from this Agreement and from the offering of the Registrable Securities or (ii) if shares of Warrant Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable lawlaw or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other holders in connection with the statements or omissions which resulted in such losses, damagesclaims, expenses, liabilities, claims damages or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders or such Initial Purchaser holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers holders agree that it would not be just and equitable if contribution pursuant to this Section 6 subparagraph (d) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in subsection this subparagraph (d). Except as provided in subparagraph (c) of this Section 16, 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 subparagraph (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required deemed to contribute include any amount legal or other expenses reasonably incurred by such indemnified party in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of connection with investigating or defending any damages which it has otherwise been required to pay by reason of such untrue action or alleged untrue statement or omission or alleged omissionclaim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any provision in this subparagraph (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 Holders’ respective obligations to contribute pursuant to of the Company under this Section 6 are several 16 shall be in proportion addition to any liability which the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which Company may otherwise be available to any indemnified party have at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 2 contracts
Sources: Warrant Purchase Agreement (Parallel Petroleum Corp), Warrant Purchase Agreement (Parallel Petroleum Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “"Controlling Person”") and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “"Indemnified Party”"), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnify pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) therein; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “"Company Indemnified Party”") from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “"Proceeding”") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “"Indemnified Party”") shall promptly notify the person against whom such indemnity may be sought (the “"Indemnifying Party”") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ ' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any the Initial Purchaser Purchasers on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s 's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees Agilent and World Trade jointly and severally agree to indemnify, defend indemnify and hold harmless each Initial PurchaserLloyds and its affiliates, each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any controlling persons (Lloyds and each such other person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a being an “Company Indemnified Party”) from and against any lossand all losses, damageclaims, expensedamages and liabilities, liabilityjoint or several, to which such Indemnified Party becomes subject under any applicable law, or otherwise related to or arising out of or in connection with (a) any transaction contemplated by this Agreement, or (b) any statement which shall have been false or incorrect in any material respect when made or deemed made in any information or documents furnished or made available by World Trade or Agilent or any of their affiliates in connection with the transactions contemplated pursuant to this Agreement; provided, that neither Agilent nor World Trade shall be liable under this Section 4 for any losses, claims, damages or liabilities to the extent related to or arising out of or in connection with (1) any breach by Agilent or World Trade of (x) any representation or warranty set forth in Section 2.10 of the Agilent Agreement or (y) any covenant set forth in Section 3.15 of the Agilent Agreement or (2) except for obligations of World Trade that are expressly set forth in a Novation Agreement dated on or after the Lloyds Funding Date, any assignment or other transfer (x) by the Trust or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Services, Inc. (“▇▇▇▇▇▇▇ ▇▇▇▇▇”) to Lloyds of all or any of the Trust’s or ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇, as applicable, rights and/or obligations under the Prior Repo Agreement and the Prior Agilent Guaranty or (y) by Lloyds or any transferee under this Agreement or the Repo Agreement of all or any of the Repo Rights and Obligations and/or Related Agreement Rights and Obligations, in each case of clause (1) and (2) without limiting the other liabilities of Agilent or World Trade hereunder or under any of the other Operative Documents. In no event shall Agilent or World Trade be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Agilent and World Trade jointly and severally agree to promptly reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any actions action or proceeding arising from any of the matters referred to in respect thereof (including the reasonable cost of investigation) which preceding sentence, whether or not such Company Indemnified Party may incur is a party and whether or become subject to under the Securities Actnot such claim, the Exchange Act action or otherwise, insofar as such loss, damage, expense, liability, claim proceeding is initiated or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing brought by or on behalf of such Holder to the Company expressly for use World Trade or Agilent whether or not resulting in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder liability. Neither Agilent nor World Trade shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding any proceeding effected without the its written consent of such Indemnifying Partyconsent, but if settled with such consent or if there shall be a final judgment for the written consent of such Indemnifying Partyplaintiff, such Indemnifying Party agrees Agilent and World Trade jointly or severally agree to indemnify and hold harmless an the Indemnified Party from and against any loss or liability by reason of such settlementsettlement or judgment. Notwithstanding Agilent and World Trade further jointly and severally agree not to assert any claim against any Indemnified Party for consequential, punitive or exemplary damages on any theory of liability in connection with the foregoing sentence, if at any time transactions described in or contemplated by this Agreement. Neither Agilent nor World Trade shall be liable to an Indemnified Party shall under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is finally determined by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s bad faith, gross negligence or willful misconduct. Agilent and World Trade jointly and severally agree that, without Lloyds’s prior written consent, neither World Trade nor Agilent nor any of their affiliates or subsidiaries will settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification has been or could be sought under the indemnification provisions of this Agreement (whether or not Lloyds or any other Indemnified Party is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent (a) includes an unconditional written release, in form and substance satisfactory to Lloyds and each Indemnified Party, from all liability arising out of such claim, action or proceeding and (b) does not include any statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Party. In the event that an Indemnified Party is requested an Indemnifying or required to appear as a witness in any action brought by or on behalf of or against Agilent or any of its subsidiaries or affiliates in which such Indemnified Party is not named as a defendant, World Trade and Agilent agree to reimburse such Indemnified Party for all reasonable expenses incurred by it in connection with such Indemnified Party’s appearing and preparing to appear as such a witness, including, without limitation, the fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partylegal counsel.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaserthe Bookrunner, each Holder, each personperson (a “Controlling Person”), if any, who controls the Bookrunner or any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial PurchasersBookrunner, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser the Bookrunner or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of Statement or any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderProspectus; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, representatives and agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or arises out with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), or is based upon any omission or alleged omission to state (C) a material fact necessary in order to make public sale of Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were mademost recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(i) or Section 2(d)(i)(C), not misleading, provided the Company shall have theretofore made available to or provided such Holder copies of such Prospectus in connection with a timely manner so as to permit such informationdelivery; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Bookrunner, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Bookrunner, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any Initial Purchaser the Bookrunner, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser the Bookrunner and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers Bookrunner agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser the Bookrunner or any person controlling any Holder or Initial Purchaserthe Bookrunner, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company Each Issuer, jointly and severally, agrees to indemnify, defend and hold harmless each the Initial Purchaser, each Holder, each personperson (a "Controlling Person"), if any, who controls any the Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “"Indemnified Party”"), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall Issuers shall, jointly and severally, reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Issuers shall not be required to provide any indemnity pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any the Initial Purchaser or a Holder to the Company expressly for use therein and (ii) in, any Shelf Registration Statement or any Prospectus; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (aSection 6(a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if prospectus, provided the Company had previously furnished sufficient copies thereof of such final prospectus to such HolderHolder in a timely manner as to reasonably permit such Holder to send or give a copy of such final prospectus to such person at or prior to the written confirmation of such sale; provided further, however, that (i) this indemnity agreement will be in addition to any liability which the Company Issuers may otherwise have to such Indemnified Party; and (ii) the Issuers shall not be required to provide any indemnity pursuant to this Section 6(a) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon an offer or sale, during a Suspension Period for which the Issuers have duly given a Suspension Notice in accordance herewith, of Registrable Securities pursuant to a Shelf Registration Statement by a Notice Holder who had theretofore duly received such Suspension Notice.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Companyeach Issuer, its directors, officers, employees, representatives, agents employees and any person who controls the Company any Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company an "Issuer Indemnified Party”") from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Issuer Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the "Holder Information") furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company Issuer Indemnified Party for any legal or other expenses reasonably incurred by the Company or any such controlling person Issuer Indemnified Party in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company any Issuer or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “"Proceeding”") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “"Indemnified Party”") shall promptly notify the person against whom such indemnity may be sought (the “"Indemnifying Party”") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ ' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Issuers, on the one hand hand, and by the Holders or the Initial Purchasers Purchaser, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Issuers, on the one hand hand, and of the Holders or the Initial Purchasers Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Issuers, on the one hand hand, and of the Holders or any the Initial Purchaser Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company Issuers or by the Holders or such the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The CompanyIssuers, the Holders and the Initial Purchasers Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving right to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser or any person controlling any Holder or the Initial Purchaser, or the Companyany Issuer , or the Company’s officers any officer or directors director of any Issuer or any person controlling the Company any Issuer and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Matria Healthcare Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend indemnify and hold harmless each Initial PurchaserHolder and its directors, each Holderofficers, employees, members, representatives and agents and each person, if any, who controls any Initial Purchaser or Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Holder Indemnified Party”), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, Exchange Act, or any other law, including any state securities law, or any rule or regulation thereunder relating to the Exchange Act offer or sale of the Registrable Securities pursuant to a Registration Statement, or otherwise, as incurred, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any the Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinStatement, or in any Prospectus, or any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises out of or is based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading; provided, and however, that: (i) the Company shall reimburse, as incurred, not be liable in any such case to the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending extent that any such loss, damage, expense, liability, liability or claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information required to be used in any Shelf Registration Statement, related prospectus or any amendments or supplements thereto pursuant to the Securities Act furnished in writing by or on behalf of any Initial Purchaser or the applicable Holder Indemnified Party to the Company expressly for use therein in a Shelf Registration Statement or Prospectus or any amendment thereof or supplement thereto; and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission of material fact made in any preliminary prospectus relating to a the Shelf Registration Statement, or in any Prospectus, the indemnity agreement contained in this subsection (aSection 6(a) shall not inure to the benefit of any a Holder from whom Indemnified Party if the person asserting any such losses, damages, expenses, liabilities, claims untrue statement or actions purchased the Registrable Securities concerned, omission of material fact was corrected in amendments or supplements to the extent that a Prospectus, as then amended or supplemented, if such corrected Prospectus was timely made available by the Company pursuant to Section 3(g) hereof, and the Holder Indemnified Party was promptly advised in writing not to use the incorrect prospectus relating prior to such Registrable Securities was required the use giving rise to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, liability or claim or action of and such Holder results from the fact that there was not sent or given to Indemnified Party, notwithstanding such personadvice, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this used it. This indemnity agreement will be in addition to any liability which that the Company may otherwise have have. This indemnity agreement will not apply to such Indemnified Partyany loss, damage, expense, liability or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder who has previously received notice from the Company of the commencement of the Suspension Period pursuant to Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend indemnify and hold harmless the Company, Company and its directors, officers, employees, representativesmembers, representatives and agents and any person each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.either
Appears in 1 contract
Sources: Registration Rights Agreement (I2 Technologies Inc)
Indemnification; Contribution. (a) The Company In connection with any registration of Registrable Securities pursuant to Section 2.01, Section 2.02 or Section 2.03 hereof, Parent agrees to indemnify, defend indemnify and hold harmless harmless, to the fullest extent permitted by Law, Stockholder, its Affiliates, directors, officers and stockholders and each Initial Purchaser, each Holder, each person, if any, Person who controls any Initial Purchaser or Holder Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (a collectively, the “Controlling PersonIndemnified Persons”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any lossand all losses, damageclaims, expensedamages, liabilityliabilities, claim or any judgments, actions in respect thereof and expenses (including the reasonable cost of investigationattorneys’ fees) which such Indemnified Party may incur joint or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon several caused by any untrue statement or alleged untrue statement of a material fact contained in any Shelf part of any Registration Statement or Prospectus, including any document incorporated by reference thereinpreliminary or final prospectus used in connection with the Registrable Securities or any Issuer FWP, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, and the Company shall reimburse, as incurred, the ; provided that Parent will not be required to indemnify any Indemnified Parties Person for any legal losses, claims, damages, liabilities, judgments, actions or other expenses reasonably incurred by them in connection with investigating or defending resulting from any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged if such untrue statement or omission of a material fact contained in, or omitted from, was made in reliance on and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made Indemnified Person furnished to Parent in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered writing by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified PartyStockholder expressly for use therein.
(b) Each HolderIn connection with any Registration Statement, severally and not jointlypreliminary or final prospectus, or Issuer FWP, Stockholder agrees to indemnify, defend and hold harmless the Companyindemnify Parent, its directorsDirectors, officersits officers who sign such Registration Statement and each Person, employeesif any, representatives, agents and any person who controls the Company Parent (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (eachAct) to the same extent as the foregoing indemnity from Parent to Stockholder, a “Company but only with respect to information with respect to any Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject Person furnished to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished Parent in writing by or on behalf of such Holder to the Company Stockholder expressly for use in any Shelf such Registration Statement Statement, preliminary or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary final prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationIssuer FWP.
(c) If In case any actionclaim, suit action or proceeding (each, a “Proceeding”including any governmental investigation) is brought against instituted involving any person Person in respect of which indemnity may be sought pursuant to either subsection (aSection 2.08(a) or (b) of this Section 6), such person Person (hereinafter called the “Indemnified Partyindemnified party”) shall will (i) promptly notify the person Person against whom such indemnity may be sought (hereinafter called the “Indemnifying Partyindemnifying party”) in writing writing; provided that the failure to give such notice shall not relieve the indemnifying party of its obligations pursuant to this Agreement except to the institution of extent such Proceeding and indemnifying party has been prejudiced in any material respect by such failure; (ii) permit the Indemnifying Party shall indemnifying party to assume the defense of such Proceedingclaim, action or proceeding with counsel reasonably satisfactory to the indemnified party; provided, however, that and (iii) pay the omission to notify fees and disbursements of such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have counsel related to such Indemnified Party claim, action or otherwiseproceeding. Such Indemnified Party shall In any such claim, action or proceeding, any indemnified party will have the right to employ retain its own counsel in any such casecounsel, but the fees and expenses of such counsel shall will be at the expense of such Indemnified Party indemnified party unless (A) the employment indemnifying party and the indemnified party have mutually agreed to the retention of such counsel shall have counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been authorized advised in writing by such Indemnifying Party in connection 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 or (C) the indemnifying party has failed to assume the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may claim and employ counsel and participate reasonably satisfactory to the indemnified party. It is understood that the indemnifying party will not, in connection with any claim, action or proceeding or related claims, actions or proceedings in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party)same jurisdiction, in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the reasonable fees and expenses of more than one separate counsel firm of attorneys (in addition to any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the Indemnified Parties who are parties to case of the retention of any such action)separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. An Indemnifying Party shall The indemnifying party will not be liable for any settlement of such Proceeding any claim, action or proceeding effected without the its written consent of such Indemnifying Party(which consent shall not be unreasonably withheld), but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the written consent of such Indemnifying Partyplaintiff, such Indemnifying Party the indemnifying party agrees to indemnify and hold harmless an Indemnified Party the indemnified party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settleor judgment. No Indemnifying Party shallindemnifying party will, without the prior written consent of any Indemnified Partythe indemnified party, effect any settlement of any pending or threatened Proceeding proceeding in respect of which such Indemnified Party any indemnified party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyindemnified party, unless such settlement includes an unconditional release of such Indemnified Party indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyproceeding.
(d) If the indemnification provided for in this Section 6 2.08 from the indemnifying party is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 indemnified party hereunder in respect of any losses, claims, damages, expenses, liabilities, claims judgments, actions or actions expenses referred to thereinin this Section 2.08, then each applicable Indemnifying Partythe indemnifying party, in lieu of indemnifying such Indemnified Partyindemnified party, shall will contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims judgments, actions or actions expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering fault of the Registrable Securities indemnifying party and indemnified party in connection with the 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 clause (i) above is not permitted by applicable lawLaw, in such proportion as is appropriate to reflect not only the relative benefits fault referred to in clause (i) above but also the relative fault benefit of the Company Parent, on the one hand hand, and of the Holders or the Initial Purchasers Stockholder, on the other other, in connection with the statements or omissions which that resulted in such losses, claims, damages, expenses, liabilities, claims judgments, actions or actionsexpenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of the Holders or any Initial Purchaser on the other shall indemnified party will be determined by reference to, among other things, whether the any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been taken by, or relates to information supplied by the Company by, such indemnifying party or by the Holders or such Initial Purchaser indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The amount paid or payable by a party as a result of the losses, claims, damages, expenses, liabilities, claims liabilities and actions expenses referred to above shall will be deemed to include include, subject to the limitations set forth in Section 2.08(c), any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any Proceedingproceeding.
(e) The Company, the Holders and the Initial Purchasers parties agree that it would not be just and equitable if contribution pursuant to this Section 6 2.08(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to in subsection Section 2.08(d). No Person guilty of “fraudulent misrepresentation” (dwithin the meaning of Section 11(f) aboveof the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 62.08(e), no Holder Stockholder shall not be required to contribute contribute, in the aggregate, any amount in excess of the amount by which the total price at which net proceeds received by Stockholder with respect to the Registrable Securities sold exceed the greater of (A) the amount paid by it were offered to the public exceeds Stockholder for its Registrable Securities and (B) the amount of any damages which it Stockholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations Each Stockholder’s obligation to contribute pursuant to this Section 6 are 2.08 is several in proportion to the respective amount number of Registrable Securities they have sold pursuant to a Shelf Registration Statement, held by such Stockholder hereunder and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in For purposes of this Section 6 2.08, each controlling person of a Stockholder shall remain operative have the same rights to contribution as such Stockholder, 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 (i) any termination notice of this Agreement, (ii) any investigation made by or on behalf commencement of any Holder action, suit or Initial Purchaser 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 who 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 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 Sections 2.08(a) and (b) without regard to the relative fault of said indemnifying party or indemnified party or any person controlling any Holder other equitable consideration provided for in Section 2.08(d) or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holdere).
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to In connection with any registration of Registrable Securities, Moelis Holdings will indemnify, defend and hold harmless each Initial Purchaser, each SMBC Unit-Holder, its affiliates, directors, officers and SMBC Unit-Holders and each person, if any, person who controls any Initial Purchaser or SMBC Unit-Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (a collectively, the “Controlling PersonIndemnified Persons”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any lossand all direct losses, damageclaims, expensedamages, liabilityliabilities, claim or obligations, costs and expenses (including, without limitation, as a result of any actions in respect thereof notices, actions, suits, proceedings, claims, demands, assessments, judgments, awards, costs, penalties, taxes and reasonable expenses, including reasonable attorneys’ and other professionals’ fees and disbursements, but excluding any consequential damages) (including the reasonable cost of investigationcollectively “Losses”) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon caused by (i) any untrue statement or alleged untrue statement of a material fact contained in any Shelf part of any Registration Statement or any Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto thereto, used in connection with the Registrable Securities or in any preliminary prospectus, Issuer FWP or arises out of or is based upon (ii) any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusProspectus, in the light of the circumstances under which they were made, ) not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as Moelis Holdings will not be required to indemnify any Indemnified Person for any Losses resulting from any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged if such untrue statement or omission of a material fact contained in, or omitted from, was made in reliance on and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement Indemnified Person furnished to Moelis Holdings in writing by, or omission or alleged untrue statement or omission made in on behalf of, any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified PartySMBC Unit-Holders expressly for use therein.
(b) Each In connection with any Registration Statement, Prospectus or Issuer FWP, each SMBC Unit-Holder, severally jointly and not jointlyseverally, agrees to will indemnify, defend and hold harmless the CompanyMoelis Holdings, its directors, officersits officers and each person, employeesif any, representatives, agents and any person who controls the Company Moelis Holdings (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (eachAct) to the same extent as the foregoing indemnity from Moelis Holdings to each SMBC Unit-Holder, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in but only with respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished to Moelis Holdings in writing by by, or on behalf of such of, any SMBC Unit-Holder to the Company or any Indemnified Persons expressly for use in any Shelf such Registration Statement or ProspectusStatement, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or Issuer FWP; and provided, further, however, that in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability for indemnity of any selling SMBC Unit-Holder of Registrable Securities hereunder be greater in amount than under this Section 13.9(b) exceed the dollar amount of the proceeds (net of any underwriting discount or commission or other selling expenses) received by such SMBC Unit-Holder upon from the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationindemnification.
(c) If In case any actionclaim, suit action or proceeding (each, a “Proceeding”including any governmental investigation) is brought against instituted involving any person in respect of which indemnity may be sought pursuant to either subsection (aSection 13.9(a) or (b) of this Section 613.9(b), such person (the “Indemnified Party”) shall promptly will promptly, but in any event within 10 Business Days, notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding writing, and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ participate in, and to the extent the Indemnifying Party so desires, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party; provided, that the failure of any Indemnified Party to give notice within the time limit provided herein shall not relieve the Indemnifying Party of its own counsel obligations under Section 13.9(a) or 13.9(b), except to the extent that the Indemnifying Party is actually and materially prejudiced by such failure to give notice. In any such claim, action or proceeding where the Indemnifying Party has assumed the defense thereof, the Indemnified Party shall have the right, but not the obligation, to participate in any such casedefense and to retain its own counsel, but the fees and expenses of such counsel shall will be at the expense of such Indemnified Party unless the employment of such counsel shall Indemnified Party and the Indemnified Party have been authorized in writing advised by such counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them. It is understood that the Indemnifying Party will not, in connection with the defense of such Proceeding any claim, action or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof proceeding or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one related claims, actions or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate proceedings in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party)same jurisdiction, in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the reasonable fees and expenses of more than one separate counsel firm of attorneys (in addition to any one Proceeding or series local counsel) at any time for all such Indemnified Parties and that all such reasonable fees and expenses will be reimbursed as they are incurred. In the case of related Proceedings together with reasonably necessary local counsel representing the retention of any such separate firm for the Indemnified Parties who are parties Parties, such firm will be designated in writing by the Indemnified Parties. No Indemnified Party will, without the prior written consent of the Indemnifying Party, settle, compromise or offer to such action)settle or compromise any pending or threatened proceeding in respect of which any Indemnified Party is seeking indemnity hereunder. An The Indemnifying Party shall will not be liable for any settlement of such Proceeding any claim, action or proceeding effected without the its written consent of such Indemnifying Partyconsent, but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the written consent of such Indemnifying Partyplaintiff, such the Indemnifying Party agrees to indemnify and hold harmless an the Indemnified Party from and against any loss or liability Loss by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settleor judgment. No Indemnifying Party shallwill, without the prior written consent of any the Indemnified Party, effect any settlement of settle, compromise or offer to settle or compromise any pending or threatened Proceeding proceeding in respect of which such any Indemnified Party is or could have been a party and seeking indemnity could have been sought hereunder by such Indemnified Partyhereunder, unless such settlement includes (i) an unconditional release of such Indemnified Party from all liability on claims in connection with such proceeding, (ii) no finding or admission of any violation of law or any violation of the rights of any person by the Indemnified Party or any of its Affiliates can be made as the result of such action, and (iii) the sole relief (if any) provided is monetary damages that are reimbursed in full by the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Indemnifying Party.
(d) If the indemnification provided for in this Section 6 13.9 from the Indemnifying Party is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 hereunder or is insufficient in respect of any losses, damages, expenses, liabilities, claims or actions Losses referred to thereinin this Section 13.9, then each applicable the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall will contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions Losses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering fault of the Registrable Securities Indemnifying Party and Indemnified Party in connection with the actions that resulted in such Losses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits fault referred to in clause (i) above but also the relative fault benefit of the Company Moelis Holdings, on the one hand hand, and of the Holders or the Initial Purchasers each SMBC Unit-Holder, on the other other, in connection with the statements or omissions which that resulted in such losses, damages, expenses, liabilities, claims or actionsLosses, as well as any other relevant equitable considerations; provided, however, that in no event shall a SMBC Unit-Holder be required by this Section 13.9(d) to contribute an aggregate amount in excess of the dollar amount of proceeds (net of underwriting discounts and commissions and other selling expenses) received by such SMBC Unit-Holder from the sale of Registrable Securities giving rise to such contribution. The relative fault of the Company on the one hand such Indemnifying Party and of the Holders or any Initial Purchaser on the other shall Indemnified Party will be determined by reference to, among other things, whether the any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been taken by, or relates to information supplied by the Company by, such Indemnifying Party or by the Holders or such Initial Purchaser Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions Losses referred to above shall will be deemed to include include, subject to the limitations set forth in Section 13.9(c), any reasonable out of pocket legal or other out of pocket fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any Proceedingproceeding.
(e) The Company, the Holders and the Initial Purchasers parties agree that it would not be just and equitable if contribution pursuant to this Section 6 13.9(d) were determined by pro rata allocation or by any other method of allocation which that does not take into account of the equitable considerations referred to in subsection Section 13.9(d). No person guilty of “fraudulent misrepresentation” (dwithin the meaning of Section 11(f) aboveof the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 613.9(e), no a SMBC Unit-Holder shall not be required to contribute contribute, in the aggregate, any amount in excess of the amount by which the total price at which net proceeds received by such SMBC Unit-Holder from the sale of the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it such SMBC Unit-Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in If indemnification is available under this Section 6 13.9, the Indemnifying Party will indemnify each Indemnified Party to the fullest extent permissible under applicable law provided in Sections 13.9(a) and 13.9(b) without regard to the relative fault of said Indemnifying Party or Indemnified Party or any other equitable consideration provided for in Section 13.9(d) or 13.9(e). The obligations of Moelis Holdings under this Section 13.9 shall remain operative and be in full force and effect regardless of addition to any liability that Moelis Holdings may otherwise have to any Indemnified Person.
(ig) any termination of Notwithstanding anything to the contrary in this Agreement, (ii) any investigation made by or each of the Indemnified Parties has relied on behalf this Section 13.9, is an express third party beneficiary of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or this Section 13.9 and is entitled to enforce the Company, or obligations of the Company’s officers or directors or any person controlling applicable Indemnified Parties under this Section 13.9 directly against such Indemnified Parties to the Company and (iii) the sale of any Registrable Security by any Holderfull extent thereof.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserholder and each affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, each Holder, each person, if any, who controls or under any Initial Purchaser Blue Sky Law or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and regulation against any losslosses, damageclaims, expensedamages, liabilityor liabilities, claim joint or any actions in respect thereof (including the reasonable cost of investigation) several, to which such Indemnified Party holder may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectuspreliminary prospectus, including any document incorporated by reference thereinregistration statement, prospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each such holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, damage, expense, liability, action or claim regardless of the negligence of any such holder or action in respect thereofaffiliate; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense, liability, claim or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained registration statement or prospectus, or any such amendment or supplement thereto, in this subsection (a) shall not inure reliance upon and in conformity with written information furnished to the benefit of any Holder from whom the person asserting Company by any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyholder expressly for use therein.
(b) Each Holder, severally and not jointly, agrees holder of Common Stock registered pursuant to indemnify, defend this Agreement will indemnify and hold harmless the CompanyCompany against any losses, its directorsclaims, officersdamages, employees, representatives, agents and any person who controls or liabilities to which the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachmay become subject, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary prospectus, registration statement or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.in
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aPromptly after receipt by an indemnified party under Sections 8(a) or (b) above of this Section 6the commencement of any action, such person (indemnified party shall, if a claim in respect thereof is to be made against the “Indemnified Party”) shall promptly indemnifying party under either such subsection, notify the person against whom such indemnity may be sought (the “Indemnifying Party”) indemnifying party in writing of the institution commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability that it may otherwise have to any indemnified party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of such Proceeding and the Indemnifying Party commencement thereof the indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After notice from the indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from subsections for any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expense, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense thereof other than reasonable costs of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as investigation incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without assumption by the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyindemnifying party, unless such settlement includes an unconditional release expenses have been specifically authorized in writing by the indemnifying party, 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 Indemnified Party from all liability on claims that are indemnified party and the subject matter indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them, in each of such Proceeding and does not include an admission which cases the fees of fault, culpability or a failure to act, counsel for the indemnified party will be paid by or on behalf of such Indemnified Partythe indemnifying party.
(d) If the indemnification provided for in this Section 6 8 is unavailable or insufficient to hold harmless an Indemnified Party indemnified party under subsections (aSection 8(a) and (bor 8(b) of this Section 6 in respect of any losses, claims, damages, expenses, liabilities, claims or actions liabilities (or action in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders holder or the Initial Purchasers on the other hand holders from this Agreement and from the offering of the Registrable Securities or (ii) if shares of Common Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other holders in connection with the statements statement or omissions which that resulted in such losses, claims, damages, expenses, liabilities, claims or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders or such Initial Purchaser holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers holders agree that it would not be just and equitable if contribution pursuant to this Section 6 8(d) were determined by pro rata allocation or by any other method of allocation which does not take account determined
(e) The obligations of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of Company under this Section 6, no Holder 8 shall be required in addition to contribute any amount in excess liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any holder of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (Warrants within the meaning of Section 11(f) the Act. The obligations of the Securities Act) holders of Common Stock under this Section 8 shall be entitled in addition to contribution from any person who was not guilty of liability that such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they holders may otherwise have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available extend, upon the same terms and conditions to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreementeach person, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaserif any, or the Company, or the Company’s officers or directors or any person controlling who controls the Company and (iii) within the sale meaning of any Registrable Security by any Holderthe Act.
Appears in 1 contract
Sources: Warrant Agreement (Grand Adventures Tour & Travel Publishing Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each the Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any the Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any the Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of Statement or any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderProspectus; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchaser, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser or any person controlling any Holder or the Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company and each Guarantor agrees to indemnify, defend and hold harmless each Initial Purchaser, each Notice Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Notice Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Notice Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company and the Guarantors shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of Statement or any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderProspectus; provided further, however, that this indemnity agreement will be in addition to any liability which the Company and the Guarantors may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, and each Guarantor, its directors, officers, employees, representatives, agents employees and any person who controls the Company or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company and each Guarantor or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party Party, except to the extent that the indemnifying party has been prejudiced in any material respect by such failure through the forfeiture of substantive rights or otherwisedefenses. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing all the Indemnified Parties who are parties to such actionParties). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, which consent shall not be unreasonably withheld or delayed, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or Guarantors or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, and each Guarantor, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the CompanyCompany or the Guarantors, or the Company’s or any of the Guarantors’ officers or directors or any person controlling the Company or any Guarantor and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify, defend indemnify --------------------------------- and hold harmless each Initial PurchaserHolder of Registrable Securities, its officers, directors, shareholders, partners, trustees, beneficiaries and agents, and each Holder, each personperson or entity, if any, who controls any Initial Purchaser or such Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”)Act, from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arising out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement registration statement or Prospectus, including any document incorporated by reference therein, prospectus relating to the Registrable Securities or in any amendment or supplement thereto or in any preliminary prospectus, or arises arising out of or is based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities, or arises expenses arise out of of, or is are based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusupon, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with allegation thereof based upon information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company by such Holder or on such Holder's behalf expressly for use therein and (ii) therein; provided, that with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, apply to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, claim, damage, expense, liability, claim or action of such Holder expense results from the fact that there a current copy of the prospectus was not sent or given to the person asserting any such personloss, claim, damage, liability, or expense at or prior to the written confirmation of the sale of such the Registrable Securities to such person, a person and such current copy of the final prospectus if would have cured the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement defect giving rise to such indemnification obligation.
(c) If any actionloss, suit claim, damage, liability or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwiseexpense. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party The Company also agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party Underwriters of the aforesaid requestRegistrable Securities, (ii) their officers and directors, and each person who controls such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to Underwriters on substantially the date same basis as that of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification of the Holders provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding6(a).
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Safeguard Health Enterprises Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend indemnify and hold harmless each Initial PurchaserHolder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each Holder, such Holder and each person, if any, Person who controls any Initial Purchaser or such Holder within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and Act, to the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”)fullest extent permitted by applicable law, from and against any lossand all losses, damageclaims, expensedamages, liability, claim liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof (including the reasonable cost thereof) arise out of investigation) which such Indemnified Party may incur or become subject to under are based upon any violation of the Securities Act, the Exchange Act or otherwisestate securities laws, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf a Registration Statement as originally filed or Prospectusin any amendment thereof, including or the Disclosure Package, or any document incorporated by reference thereinpreliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading(in the case of the Disclosure Package, or arises out of any preliminary, final or is based upon any omission summary Prospectus or alleged omission to state a material fact necessary in order to make the statements made Free Writing Prospectus included in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectussuch Registration Statement, in the light of the circumstances under which they were made, ) not misleading, and the Company shall reimburseagrees to reimburse each such indemnified party, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, expense, liability, claim liability or action in respect thereof(whether or not the indemnified party is a party to any proceeding); provided, however, that (i) insofar as the Company will not be liable in any case to the extent that any such loss, claim, damage, expense, liability, claim liability or action expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, made therein in reliance upon and in conformity with written information furnished in writing to the Company by or on behalf of any Initial Purchaser such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit out of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the sales of Registrable Securities concerned, made during a Suspension Period after notice is given pursuant to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyhave.
(b) Each Holder, Holder severally (and not jointly, ) agrees to indemnify, defend indemnify and hold harmless the CompanyCompany and each of its Affiliates, its directors, officers, employees, representativesmembers, managers and agents and any person each Person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act (eachAct, a “Company Indemnified Party”) to the fullest extent permitted by applicable law, from and against any lossand all losses, damageclaims, expense, liability, claim damages or liabilities to which they or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party them may incur or become subject to under insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, the Exchange Act or otherwisestate securities laws, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by a Registration Statement as originally filed or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, including 18 preliminary, final or summary Prospectus included in any document incorporated by reference thereinsuch Registration Statement, or in any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading(in the case of the Disclosure Package, or arises out of any preliminary, final or is based upon any omission summary Prospectus or alleged omission to state a material fact necessary in order to make the statements Free Writing Prospectus included in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectussuch Registration Statement, in the light of the circumstances under which they were made, ) not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clauseextent, each Holder shall reimbursebut only to the extent, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or that any such controlling person untrue statement or alleged untrue statement or omission or alleged omission is contained in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition written information relating to any liability which such Holder may otherwise have furnished to the Company by or any on behalf of its controlling persons. In no event such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder upon in the sale of the Registrable Securities pursuant offering to the Shelf which such Registration Statement giving rise to such indemnification obligationor Prospectus relates.
(c) If Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, suit or proceeding (eachsuch indemnified party will, if a “Proceeding”) is brought against any person claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of which indemnity may be sought pursuant the commencement thereof; but the failure so to either subsection notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of this Section 6substantial rights and defenses; and (ii) will not, such person in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the “Indemnified Party”) extent that it shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such Proceeding; providedindemnified party of its election to so assume the defense thereof, however, that the omission to notify such Indemnifying Party indemnifying party shall not relieve such Indemnifying Party from any liability which it may have be liable to such Indemnified Party indemnified party for any legal expenses of other counsel or otherwiseany other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Such Indemnified Party Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel in any such case(and one local counsel), but and the fees indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel shall be at if (i) the expense use of such Indemnified Party unless counsel chosen by the employment of indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have been authorized in writing by such Indemnifying Party in connection with reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the defense of such Proceeding or such Indemnifying Party indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to have charge the indemnified party to represent the indemnified party within a reasonable time after notice of the defense institution of such Proceeding within 30 days of action; or (iv) the receipt of notice thereof or such Indemnified Party indemnifying party shall have reasonably concluded upon authorize the written advice of indemnified party to employ separate counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party)the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understoodthe same general circumstances or allegations, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate counsel firm of attorneys (in addition to any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action)counsel) for all indemnified parties. An Indemnifying Party indemnifying party shall not be liable for under this Section 8 to any indemnified party regarding any settlement of such Proceeding effected without or compromise or consent to the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement entry of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance judgment with such request prior respect to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding claim, action, suit or proceeding in respect of which such Indemnified Party is indemnification or could have been a party and indemnity could have been contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such Indemnified Partyindemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release of such Indemnified Party indemnified party from all liability on claims that are the subject matter of such Proceeding proceeding and (ii) does not include an any statement as to or any admission of fault, culpability or a failure to act, act by or on behalf of such Indemnified Partyany indemnified party.
(d) If In the indemnification event that the indemnity provided for in this Section 6 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of indemnified party for any losses, damages, expenses, liabilities, claims or actions referred to thereinreason, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall party agrees to contribute to the amount paid or payable by such Indemnified Party as a result of such aggregate losses, damagesclaims, expensesdamages and liabilities (including, liabilitieswithout limitation, claims legal or actions other expenses reasonably incurred in connection with investigating or defending same) (icollectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by fault of the Company indemnifying party on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers indemnified party on the other in connection with the statements or omissions which resulted in such losses, damagesclaims, expenses, liabilities, claims damages or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company indemnifying party on the one hand or by the Holders or such Initial Purchaser indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers parties agree that it would not be just and equitable if contribution pursuant to this Section 6 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in subsection this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (dor actions in respect thereof) abovereferred to above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 68(d), no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribute contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 6 are several in proportion 8(d) shall be limited to the respective amount of Registrable Securities they have sold pursuant net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to a Shelf which such Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights Statement or remedies which may otherwise be available to any indemnified party at law or in equityProspectus relates.
(fe) The indemnity and contribution provisions contained in of this Section 6 shall 8 will remain operative and in full force and effect effect, regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or Initial Purchaser the Company or any person controlling any Holder or Initial Purchaserof the officers, or the Company, or the Company’s officers or directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any person controlling indemnification by an indemnifying party is prohibited or limited by law, the Company and indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (iiii) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Security Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any Holderseller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Citadel Securities LLC)
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify, defend ------------------------------ indemnify and hold harmless each Initial Purchaser, each Designated Holder, its partners, directors, officers, affiliates and each person, if any, Person who controls any Initial Purchaser or Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”Act) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), such Designated Holder from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) which such Indemnified Party may incur (each, a "Liability" and collectively, "Liabilities"), arising out of or become subject based upon any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading under the Securities Actcircumstances such statements were made, the Exchange Act or otherwise, except insofar as such loss, damage, expense, liability, claim or action Liability arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated contained in any Shelf such Registration Statement Statement, preliminary prospectus or final prospectus in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, reliance and in conformity with information concerning such Designated Holder furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company by such Designated Holder expressly for use therein and (ii) with respect therein, including, without limitation, the information furnished to the Company pursuant to Section 7(b). The Company shall also provide customary indemnities to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit underwriters of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concernedSecurities, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, their officers, employees, representatives, agents directors and any person employees and each Person who controls the Company such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 Act) to the same extent as provided above with respect to the indemnification of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder Designated Holders of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationSecurities.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Bottomline Technologies Inc /De/)
Indemnification; Contribution. (a) The 9.1. Each of the Company and the Operating Partnership, jointly and severally, agrees to indemnify, defend indemnify and hold harmless each Initial Purchaser, each Holder, Purchaser and each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), is controlled by or is under common control with Purchaser from and against any lossand all losses, damageclaims, expenseliabilities, liabilityexpenses and damages (including, claim but not limited to, any and all reasonable investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with this paragraph) that arise out of, or are based upon: (a) the Company’s use of a registered trademark that is the exclusive property of Purchaser’s affiliates or disclosure by the Company of the transaction contemplated by this Agreement and the Sourcing Agreement to be executed and delivered by the Company and Purchaser’s affiliate, in either case as used or disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus (each as defined in the Underwriting Agreement); (b) any breach by the Company and the Operating Partnership of any of their respective representations, warranties and agreements made to Purchaser in this Agreement; (c) any untrue statement or alleged untrue statement of a material fact contained in the Resale Shelf Registration Statement (as defined in Section 12.1 below) or any actions in respect thereof (including amendment thereof, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Actstatements therein not misleading, the Exchange Act or otherwise, except insofar as such losslosses, damageclaims, expensedamages, liabilityliabilities or expenses are caused by any untrue statement, claim alleged untrue statement, omission or action arises out of or is alleged omission based upon information furnished to the Company by Purchaser for use therein; or (d) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or prospectus forming a part of the Resale Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises out of or is based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectustherein, in the light of the circumstances under in which they were made, not misleading, and except insofar as such losses, claims, damages, liabilities or expenses are caused by any untrue statement, alleged untrue statement, omission or alleged omission based upon information furnished to the Company shall reimburse, as incurred, the Indemnified Parties by Purchaser for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereofuse therein; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, in no case shall the Company and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder the Operating Partnership be liable to the Company expressly indemnified parties pursuant to clause (b) of this Section 9 for use therein an amount that in the aggregate exceeds the Purchase Price for the Shares issued and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementsold hereunder; provided, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which that the Company may and the Operating Partnership might otherwise have to such Indemnified Partyhave.
(b) Each Holder, severally and not jointly, 9.2. Purchaser agrees to indemnify, defend indemnify and hold harmless the Company, its directorsthe Operating Partnership and each person, officersif any, employees, representatives, agents and any person who controls the Company or the Operating Partnership within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “or is controlled by or is under common control with the Company Indemnified Party”) from and against any lossand all losses, damageclaims, expenseliabilities, liabilityexpenses and damages (including, claim but not limited to, any and all reasonable investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance with this paragraph) that arise out of, or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is are based upon any untrue statement statement, or alleged untrue statement of a material fact contained in statement, omission or alleged omission based upon information furnished in writing by or on behalf of such Holder to the Company expressly by Purchaser for use in any the Resale Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, amendment thereto or in any preliminary prospectus or prospectus forming a part of such Resale Shelf Registration Statement or any amendment or supplement thereto or in any preliminary prospectusthereto; provided, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may that Purchaser might otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationhave.
(c) 9.3. If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without reason the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees foregoing indemnification is either unavailable or insufficient to indemnify and hold harmless an Indemnified Party from and against indemnified party in respect to any loss loss, claim, liability, expense or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party damage referred to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraphherein, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a indemnifying party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such lossesloss, damagesclaim, expensesliability, liabilities, claims expense or actions (i) damage in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on indemnifying party and the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actionsindemnified party, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand indemnifying party and of the Holders or any Initial Purchaser on the other indemnified party shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to state a material fact related to information supplied by the Company indemnifying party or by the Holders or such Initial Purchaser indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of or entity determined to have committed a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation.
9.4. The Holders’ respective obligations Any party that proposes to contribute pursuant assert the right to be indemnified under this Section 6 are several 9 in proportion connection with a claim by a third party will, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section 9, notify each such indemnifying party of the commencement of such action. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without its prior written consent, such consent not to be unreasonably withheld or delayed. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the respective amount entry of Registrable Securities they have sold pursuant any judgment in any pending or threatened claim, action or proceeding relating to a Shelf Registration Statement, and not joint. The remedies provided for in the matters contemplated by this Section 6 are 9 (whether or not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law is a party thereto), unless such settlement, compromise or in equity.
(f) The indemnity consent includes an unconditional release of each indemnified party from all liability arising or that may arise out of such claim, action or proceeding and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) does not obligate the indemnified party to take any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaseraction, or the Company, or the Company’s officers or directors or refrain from taking any person controlling the Company and (iii) the sale of any Registrable Security by any Holderaction that it would otherwise be legally entitled to take.
Appears in 1 contract
Sources: Stock Purchase Agreement (Summit Hotel Properties, Inc.)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend indemnify and hold harmless each Initial PurchaserHolder and its directors, each Holderofficers, employees, members, representatives and agents and each person, if any, who controls any Initial Purchaser or Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Holder Indemnified Party”), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, Exchange Act, or any other law, including any state securities law, or any rule or regulation thereunder relating to the Exchange Act offer or sale of the Registrable Securities pursuant to a Registration Statement, or otherwise, as incurred, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any the Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinStatement, or in any Prospectus, or any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises out of or is based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading; provided, and however, that: (i) the Company shall reimburse, as incurred, not be liable in any such case to the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending extent that any such loss, damage, expense, liability, liability or claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information required to be used in any Shelf Registration Statement, related prospectus or any amendments or supplements thereto pursuant to the Securities Act furnished in writing by or on behalf of any Initial Purchaser or the applicable Holder Indemnified Party to the Company expressly for use therein in a Shelf Registration Statement or Prospectus or any amendment thereof or supplement thereto; and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission of material fact made in any preliminary prospectus relating to a the Shelf Registration Statement, or in any Prospectus, the indemnity agreement contained in this subsection (aSection 6(a) shall not inure to the benefit of any a Holder from whom Indemnified Party if the person asserting any such losses, damages, expenses, liabilities, claims untrue statement or actions purchased the Registrable Securities concerned, omission of material fact was corrected in amendments or supplements to the extent that a Prospectus, as then amended or supplemented, if such corrected Prospectus was timely made available by the Company pursuant to Section 3(g) hereof, and the Holder Indemnified Party was promptly advised in writing not to use the incorrect prospectus relating prior to such Registrable Securities was required the use giving rise to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, liability or claim or action of and such Holder results from the fact that there was not sent or given to Indemnified Party, notwithstanding such personadvice, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this used it. This indemnity agreement will be in addition to any liability which that the Company may otherwise have have. This indemnity agreement will not apply to such Indemnified Partyany loss, damage, expense, liability or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder who has previously received notice from the Company of the commencement of the Suspension Period pursuant to Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend indemnify and hold harmless the Company, Company and its directors, officers, employees, representativesmembers, representatives and agents and any person each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use required to be included in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinStatement, or in any Prospectus, or any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; andprovided, subject to the limitation set forth immediately preceding this clausehowever, each that no such Holder shall reimburse, as incurred, the Company be liable for any legal or other expenses reasonably incurred by claims hereunder in excess of the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon from the sale of the Registrable Securities pursuant to the such Shelf Registration Statement giving rise to such indemnification obligationStatement.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding with one counsel (in addition to any local counsel) reasonably satisfactory to the Indemnified Party and shall pay the fees and expenses of such counsel related to such Proceeding; provided, however, that failure to so notify the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability hereunder except to the extent it is materially prejudiced as a result thereof, but in no event shall such Indemnifying Party be relieved from any liability which it may otherwise have to such Indemnified Party or otherwiseseparate from these indemnification provisions. Such Indemnified Party shall have the right to employ its own counsel in any such casecounsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the employment Indemnified Party is a Holder of such counsel shall have been authorized in writing by such Notes representing not less than 33% of the aggregate principal amount of the then outstanding Notes, (ii) the Indemnifying Party in connection with and the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon mutually agreed to the written advice of counsel that there may be one or more defenses available to it that are different fromcontrary, additional to or in conflict with those available to such (iii) the Indemnifying Party has failed within a reasonable time after receipt of notice to assume defense of a Proceeding to retain counsel reasonably satisfactory to the Indemnified Party or (iv) the named parties in which case any such Proceeding (including any impleaded parties) include both the Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of and the Indemnified Party, but such the Indemnifying Party proposes to have the same counsel represent it and the Indemnified Party, and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnifying Party may employ counsel and participate in the defense thereof but be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all Indemnified Parties in accordance with the foregoing sentence, and that all such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses actually incurred shall be borne by such promptly reimbursed as incurred upon delivery to the Indemnifying Party and paid as incurred (it being understood, however, that of reasonable documentation therefor setting forth such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action)reasonable detail. An The Indemnifying Party shall not be liable for any settlement of such any Proceeding effected without the its written consent of such Indemnifying Partyconsent, but if settled with such consent or if there be a final judgment for the written consent of such Indemnifying Partyplaintiff, such the Indemnifying Party agrees to indemnify and hold harmless an any Indemnified Party from and against any loss or liability by reason of such settlementsettlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an the Indemnifying Party to reimburse such the Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such the Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such the Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such the Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any the Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyparty, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an without admission of fault, culpability or a failure to act, fault by or on behalf of such the Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilitiesliabilities or claims, claims or actions as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. Notwithstanding the provisions of this Section 6, neither any of the Purchasers nor any Holder shall be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such Holder or Purchaser, as the case may be, exceeds the amount of any damages that such Holder or Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party Indemnified Party at law or in equity.,
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, Company or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
(g) Section 6 of this Agreement may not be amended except by an instrument in writing signed by the Indemnified Party affected thereby.
Appears in 1 contract
Sources: Registration Rights Agreement (I2 Technologies Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, reimburse the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation, absent fraud on the part of such Holder.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any the Initial Purchaser Purchasers on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Protein Design Labs Inc/De)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, Notice Holder and each Holder, each person, if any, person who controls any Initial Purchaser or Notice Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “a "Holder Indemnified Party”"), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) except insofar as any such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser Notice Holder or any person, if any, who controls a Notice Holder to the Company expressly for use therein and (ii) with respect except that this indemnity agreement shall not apply to any loss, damage, expense, liability or claim (1) arising from an offer or sale by a Notice Holder of Registrable Securities occurring during a Suspension Period, if the indemnified party is a Notice Holder that received from the Company a Deferral Notice prior to the making of such offer or sale or (2) the Notice Holder fails to deliver at or prior to written confirmation of sale, the most recent Prospectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to of a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase material fact and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof provided to such Notice Holder such most recent Prospectus, as amended or supplemented, in a timely manner and in requisite quantities so as to timely permit such delivery by the Notice Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Notice Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “"Company Indemnified Party”") from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Notice Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “"Proceeding”") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “"Indemnified Party”") shall promptly notify the person against whom such indemnity may be sought (the “"Indemnifying Party”") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwiseto the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this Agreement. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 60 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, liabilities or claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, or the Company’s 's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (ai) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserholder and each affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, each Holder, each person, if any, who controls or under any Initial Purchaser Blue Sky Law or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and regulation against any losslosses, damageclaims, expensedamages, liabilityor liabilities, claim joint or any actions in respect thereof (including the reasonable cost of investigation) several, to which such Indemnified Party holder may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectuspreliminary prospectus, including any document incorporated by reference thereinregistration statement, prospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each such holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, damage, expense, liability, action or claim regardless of the negligence of any such holder or action in respect thereofaffiliate; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense, liability, claim or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained registration statement or prospectus, or any such amendment or supplement thereto, in this subsection (a) shall not inure reliance upon and in conformity with written information furnished to the benefit of any Holder from whom the person asserting Company by any such holder expressly for use therein.
(ii) Each holder of Common Stock registered pursuant to this Agreement will indemnify and hold harmless the Company against any losses, claims, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, liabilities to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holderbecome subject, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary prospectus, registration statement or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or was made in any preliminary prospectus, registration statement or prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the light Company by such holder expressly for use therein.
(iii) Promptly after receipt by an indemnified party under Sections 4(d)(i) or (ii) above of the circumstances under which they were madecommencement of any action, not misleadingsuch indemnified party shall, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, if a claim or action in respect thereof is to be made against the indemnifying party under either such subsection, notify the indemnifying party in writing of the commencement thereof. This indemnity agreement will be in addition ; but the omission so to notify the indemnifying party shall not relieve it from any liability which such Holder that it may otherwise have to the Company or any of its controlling personsindemnified party. In no event case any such action shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) indemnified party and it shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing indemnifying party of the institution of such Proceeding and commencement thereof the Indemnifying Party indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After notice from the indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from subsections for any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expense, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense thereof other than reasonable costs of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as investigation incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without assumption by the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyindemnifying party, unless such settlement includes an unconditional release expenses have been specifically authorized in writing by the indemnifying party, 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 Indemnified Party from all liability on claims indemnified party has been advised by counsel that are the subject matter representation of such Proceeding indemnified party and does not include an admission the indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them, in each of fault, culpability or a failure to act, which cases the fees of counsel for the indemnified party will be paid by or on behalf of such Indemnified Partythe indemnifying party.
(div) If the indemnification provided for in this Section 6 4(d) is unavailable or insufficient to hold harmless an Indemnified Party indemnified party under subsections Section 4(d)(i) or (aii) and (b) of this Section 6 in respect of any losses, claims, damages, expenses, liabilities, claims or actions liabilities (or action in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders holder or the Initial Purchasers on the other hand holders from this Agreement and from the offering of the Registrable Securities or (ii) if shares of Common Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other holders in connection with the statements statement or omissions which that resulted in such losses, claims, damages, expenses, liabilities, claims or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders or such Initial Purchaser holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers holders agree that it would not be just and equitable if contribution pursuant to this Section 6 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 of allocation which that does not take into account of 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 (dor actions in respect thereof) above. Notwithstanding the provisions of referred to above in this Section 6, no Holder 4(d)(iv) shall be required deemed to contribute include any amount legal or other expenses reasonably incurred by such indemnified party in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of connection with investigation or defending any damages which it has otherwise been required to pay by reason of such untrue action or alleged untrue statement or omission or alleged omissionclaim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for Notwithstanding any provision in this Section 6 are not exclusive and 4(d)(iv) to the contrary, no holder shall not limit be liable for any rights 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 remedies which may otherwise be available to any indemnified party at law or in equityliabilities.
(fv) The indemnity and contribution provisions contained in obligations of the Company under this Section 6 4(d) shall remain operative and be in full force and effect regardless of (i) addition to any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling liability that the Company may otherwise have and (iiishall extend, upon the 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 liability that such holders may otherwise have and shall extend, upon the sale same terms and conditions to each person, if any, who controls the Company within the meaning of any Registrable Security by any Holderthe Securities Act.
Appears in 1 contract
Sources: Domain Registrar Project Completion Agreement (Fullnet Communications Inc)
Indemnification; Contribution. (a) The Company agrees and the Issuer agree to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company and the Issuer shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company and the Issuer shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon (i) any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and in, any Shelf Registration Statement or any Prospectus or (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating a disposition, pursuant to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concernedby an Indemnified Party during a Suspension Period, to the extent that a prospectus relating provided such Indemnified Party received, prior to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection disposition, a Suspension Notice with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given respect to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderSuspension Period; provided further, however, that this indemnity agreement will be in addition to any liability which the Company and the Issuer may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the CompanyCompany and the Issuer, each of its directors, officers, employees, representatives, agents and any person who controls the Company and the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or arises out with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), or is based upon any omission or alleged omission to state (C) a material fact necessary in order to make public sale of Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were mademost recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(i) or Section 2(d)(i)(C), not misleading, provided the Company shall have theretofore provided such Holder with copies of such Prospectus in connection with a timely manner so as to permit such informationdelivery; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company and the Issuer for any legal or other expenses reasonably incurred by the Company and the Issuer or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company and the Issuer or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such The Indemnifying Party shall be entitled to appoint counsel (including local counsel) of the Indemnifying Party’s choice at the Indemnifying Party’s expense to represent the Indemnified Party in any action for which indemnification is sought (in which case the Indemnifying Party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the Indemnifying Party, retained by the Indemnified Party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Party. Notwithstanding the Indemnifying Party’s election to appoint counsel (including local counsel) to represent the Indemnified Party in an action, the Indemnified Party shall have the right to employ its own separate counsel in any such case(including local counsel), but and the fees Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An ) if (i) the use of counsel chosen by the Indemnifying Party shall not be liable for to represent the Indemnified Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any settlement of such Proceeding effected without action include both the written consent of such Indemnifying Party, but if settled with Indemnified Party and the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to the Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by Party; (iii) the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such employed counsel satisfactory to the Indemnified Party in accordance with such request prior to represent the date Indemnified Party within thirty (60) days after notice of the institution of such settlement and action; or (iiiiv) such the Indemnifying Party shall authorize the Indemnified Party shall have given such to employ separate counsel at the expense of the Indemnifying Party at least 30 days’ prior notice of its intention to settleParty. No Indemnifying Party shall, without the prior written consent of any the Indemnified Party, effect any settlement of any pending or threatened Proceeding action in respect of which such any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, Party unless such settlement (i) includes an unconditional release of such Indemnified Party from all liability on any claims that are the subject matter of such Proceeding and action, (ii) does not include a statement as to, or an admission of of, fault, culpability or a failure to act, act by or on behalf of such an Indemnified Party, and (iii) does not include any undertaking or obligation to act or to refrain from acting by the Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Issuer, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Issuer, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company and the Issuer, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company and the Issuer or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Issuer, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Issuer, or the Company’s or the Issuer’s officers or directors or any person controlling the Company or the Issuer and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Duke Realty Limited Partnership/)
Indemnification; Contribution. (ai) The Company TAP agrees to indemnify, defend indemnify and hold harmless each Initial PurchaserIndemnitee from and against any and all losses, each Holderclaims, each persondamages, liabilities and expenses (including reasonable costs of investigation) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any prepricing prospectus, registration statement or prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or expenses arise out of or are based upon any untrue statement or omission or alleged untrue statement or omission which has been made therein or omitted therefrom in reliance upon and in conformity with the information relating to-a Minority Stockholder furnished in writing to TAP by or on behalf of a Minority Stockholder expressly for use in connection therewith. The foregoing indemnity agreement shall be in addition to any liability which TAP may otherwise have.
(ii) If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against TAP, such Indemnitee shall promptly notify TAP, and TAP shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (x) TAP has agreed in writing to pay such fees and expenses, (y) TAP has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties include) both such Indemnitee and TAP, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and TAP by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case TAP shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that TAP shall, in connection with any one such action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be reimbursed as they are incurred. TAP shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent, but if anysettled with such written consent, or if there be a final judgment for the plaintiff in any such action, suit or proceeding, TAP agrees to indemnify and hold harmless such Indemnitee, to the extent provided in the preceding paragraph, from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment.
(iii) Each of the Minority Stockholders, severally and not jointly, agree to indemnify and hold harmless TAP, its directors, its officers who sign the registration statement, and any person who controls any Initial Purchaser or Holder TAP within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) same extent as the foregoing indemnity from TAP to an Indemnitee, but only with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus information relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information Minority Stockholder furnished in writing by or on behalf of such Holder to the Company Minority Stockholder expressly for use in the registration statement, prospectus or any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprepricing prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereofthereto. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is shall be brought against TAP, any of its directors, any such officer, or any such controlling person based on the registration statement, prospectus or any prepricing prospectus, or any amendment or supplement thereto, and in respect of which indemnity may be sought against any Minority Stockholder pursuant to either subsection (a) or (b) of this Section 64(f)(iii), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party Minority Stockholder shall have the right rights and duties given to TAP by Section 4(f)(ii) hereof (except that if TAP shall have assumed the defense thereof such Minority Stockholder shall not be required to do so, but may employ its own separate counsel therein and participate in any such casethe defense thereof, but the fees and expenses of such counsel shall be at the expense of Minority Stockholder's expense), and TAP, its directors, any such Indemnified Party unless the employment of officer, and any such counsel controlling person shall have been authorized in writing the rights and duties given to an Indemnitee by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel Section 4(f)(ii) hereof. The foregoing indemnity agreement shall be at in addition to any liability which the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified PartyMinority Stockholders may otherwise have.
(div) If the indemnification provided for in this Section 6 4(f) is unavailable to an Indemnified Party indemnified party under subsections paragraphs (ai) and or (biii) of this Section 6 hereof in respect of any losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses referred to therein, then each applicable Indemnifying Partyan indemnifying party, in lieu of indemnifying such Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand TAP and of the Holders or the Initial Purchasers on the other in Minority Stockholders in-connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities or expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company TAP on the one hand and of the Holders or any Initial Purchaser a Minority Stockholder on the other hand shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by TAP on the Company one hand or by such Minority Stockholder on the Holders or such Initial Purchaser other hand and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(ev) The Company, the Holders TAP and the Initial Purchasers Minority Stockholders agree that it would not be just and equitable if contribution pursuant to this Section 6 4(f) were determined by a pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to in subsection (dSection 4(f)(iv) hereof. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to in Section 4(f)(iv) hereof shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating any claim or defending any such action, suit or proceeding. Notwithstanding the provisions of this Section 64(f), no Holder Minority Stockholder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered proceeds to the public such Minority Stockholder exceeds the amount of any damages which it such Minority Stockholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several .
(vi) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or proceeding in proportion to the respective amount respect of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law is or in equitycould have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding.
(fvii) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section 4(f) 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 provisions agreements contained in this Section 6 4(f) shall remain operative and in full force and effect effect, regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder an Indemnitee, TAP, its directors or Initial Purchaser officers, or any person controlling any Holder or Initial PurchaserTAP, or the Company, or the Company’s officers or directors or any person controlling the Company and (iiiii) the sale any termination of any Registrable Security by any Holderthis Agreement.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a "Controlling Person"), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “"Indemnified Party”"), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration StatementStatement or any Prospectus, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered including information provided by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, in a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderNotice and Questionnaire; provided further, however, that this indemnity agreement will (A) be in addition to any liability which the Company may otherwise have to such Indemnified PartyParty and (B) not apply to any loss, damage, expense, liability or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “"Company Indemnified Party”") from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the "Holder Information") furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in Prospectus, or any amendment or supplement thereto thereto, or necessary to make the statements therein such Holder Information not misleading, (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or arises out with respect to which such Holder is named as a selling security holder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(i), or is based upon any omission or alleged omission to state (C) a material fact necessary in order to make public sale of Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were made, not misleading, in connection with most recent applicable Prospectus provided to such informationHolder by the Company pursuant to Section 3(g) or Section 2(d)(i)(C); and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “"Proceeding”") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “"Indemnified Party”") shall promptly notify the person against whom such indemnity may be sought (the “"Indemnifying Party”") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission failure to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent such failure to notify materially prejudices such Indemnifying Party. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ ' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the each Initial Purchasers Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or any Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s 's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Antigenics Inc /De/)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), PSC from and against any lossand all losses, damageclaims, expensedamages, liabilityreasonable expenses and liabilities (including any reasonable investigation, claim legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any actions in respect thereof (including claim asserted, as the reasonable cost of investigationsame are incurred) to which such Indemnified Party it may incur or become subject to under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities arise out of or is are based upon on (i) any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, such registration statement (including any document incorporated by reference thereinrelated preliminary or definitive prospectus, or in any amendment or supplement thereto to such registration statement or in any preliminary prospectus, ) or arises out of or is based upon (ii) any omission or alleged omission to state in such document a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto it or necessary to make the statements therein in it not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that the Company will not be liable to the extent that (i1) insofar as any such loss, claim, damage, expense, liability, claim expense or action liability arises out of or from and is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any an untrue statement or omission or alleged untrue statement or omission made in any reliance on and in conformity with information furnished in writing to the Company by or on behalf of PSC in accordance with Section 4(b) of this Agreement for use in such registration statement, or (2) in the case of a sale directly by PSC, such untrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus relating and corrected in a final or amended prospectus, and PSC failed to deliver a Shelf Registration Statement, copy of the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims final or actions purchased the Registrable Securities concerned, to the extent that a amended prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such the Registrable Securities to the Person asserting any such personloss, a copy of claim, damage or liability in any case where such delivery is required by the final prospectus if Securities Act or any state securities laws. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company had previously furnished copies thereof to by or on behalf of PSC in accordance with Section 4(b) of this Agreement for use in such Holder; provided furtherregistration statement, however, that this indemnity agreement PSC will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend indemnify and hold harmless the Company, Company (including its directors, officers, employees, representatives, agents representatives and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”agents) from and against any lossand all losses, damageclaims, expensedamages, liabilityreasonable expenses and liabilities (including any reasonable investigation, claim legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any actions in respect thereof (including claim asserted, as the reasonable cost same are incurred) to which they, or any of investigation) which such Company Indemnified Party them, may incur or become subject to under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that in no event shall the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party aggregate amounts payable by PSC by way of indemnity or contribution under Sections 5(a) and 5(b) exceed the proceeds from the offering received by PSC (net of any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such caseselling expenses paid by PSC), but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate except in the defense thereof but the fees and expenses case of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne fraud or willful misconduct by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified PartyPSC.
(db) If the indemnification provided for in this Section 6 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an Indemnified indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses, liabilities, claims expenses or actions liabilities referred to therein, then each applicable Indemnifying Partyindemnifying Party under this Section 5, in lieu of indemnifying such Indemnified Partyindemnified Party thereunder, shall contribute to the amount paid or payable by such Indemnified indemnified Party as a result of such losses, claims, damages, expenses, liabilities, claims expenses or actions liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand PSC from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other PSC in connection with the statements or omissions which resulted in such losses, claims, damages, expenses, expenses or liabilities, claims or actions, as well as any other relevant equitable considerations. The relative benefits received by the Company and PSC shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and PSC, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other PSC shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Company or by the Holders or such Initial Purchaser PSC and the partiesParties’ relative intent, knowledge, knowledge and access to information and opportunity to correct or prevent such statement or omissioninformation. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims Company and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers PSC agree that it would not be just and equitable if contribution pursuant to this Section 6 5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No person Person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not found guilty of such fraudulent misrepresentation.
(c) The amount paid by an indemnifying Party or payable to an indemnified Party as a result of the losses, claims, damages and liabilities referred to in this Section 5 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified Party in connection with investigating or defending any such action or claim, payable as the same are incurred. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, indemnification and not joint. The remedies contribution provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall 5 will remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser the indemnified Party or any person officer, director, employee, agent or controlling Person of the indemnified Party. No indemnifying Party, in the defense of any Holder such claim or Initial Purchaserlitigation, shall enter into a consent of entry of any judgment or enter into a settlement without the Companyconsent of the indemnified Party, which consent will not be unreasonably withheld. Any indemnified Party that proposes to assert the right to be indemnified under this Section 5 will, promptly after receipt of notice of commencement or threat of any claim or action against such Party in respect of which a claim is to be made against an indemnifying Party under this Section 5 notify the Companyindemnifying Party in writing (such written notice, an “Indemnification Notice”) of the commencement or threat of such action, enclosing a copy of all papers served or notices received (if applicable), but the omission to so notify the indemnifying Party will not relieve the indemnifying Party from any liability that the indemnifying Party may have to any indemnified Party under the foregoing provisions of this Section 5 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying Party. The indemnified Party will have the right to retain its own counsel in any such action if (i) the employment of counsel by the indemnified Party has been authorized by the indemnifying Party, (ii) the indemnified Party’s officers counsel, with the concurrence of indemnifying Party’s counsel, shall have reasonably concluded that there is a substantial likelihood of a conflict of interest between the indemnifying Party and the indemnified Party in the conduct of the defense of such action or directors or any person controlling the Company and (iii) the sale indemnifying Party shall not in fact have employed counsel to assume the defense of such action within a reasonable period of time following its receipt of the Indemnification Notice, in each of which cases the fees and expenses of the indemnified Party’s separate counsel shall be at the expense of the indemnifying Party; provided, however, that the indemnified Party shall agree to repay any expenses so advanced hereunder if it is ultimately determined by a court of competent jurisdiction that the indemnified Party to whom such expenses are advanced is not entitled to be indemnified; and provided, further, that so long as the indemnified Party has reasonably concluded that no conflict of interest exists, the indemnifying Party may assume the defense of any action hereunder with counsel reasonably satisfactory to the indemnified Party.
(d) The obligation of the Company and PSC under this Section 5 shall survive the completion of any offering of Registrable Security by any HolderSecurities in a registration statement under Section 2, and otherwise.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emergent BioSolutions Inc.)
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify, defend ------------------------------ indemnify and hold harmless each Initial Purchaser, each Designated Holder, its partners, directors, officers, affiliates and each person, if any, Person who controls any Initial Purchaser or Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”Act) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), such Designated Holder from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) (each, a "Liability" and collectively, "Liabilities"), arising --------- ----------- out of or based upon any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which such Indemnified Party may incur or become subject to under the Securities Actstatements were made, the Exchange Act or otherwise, except insofar as such loss, damage, expense, liability, claim or action Liability arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated contained in any Shelf such Registration Statement Statement, preliminary prospectus or final prospectus in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, reliance and in conformity with information concerning such Designated Holder furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company by such Designated Holder expressly for use therein and (ii) with respect therein, including, without limitation, the information furnished to the Company pursuant to Section 7(b). The Company shall also provide customary indemnities to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit underwriters of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concernedSecurities, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, their officers, employees, representatives, agents directors and any person employees and each Person who controls the Company such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 Act) to the same extent as provided above with respect to the indemnification of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder Designated Holders of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationSecurities.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend ViroPharma shall indemnify and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arising out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement Statement, prospectus or Prospectus, including preliminary prospectus or notification or offering circular (as amended or supplemented if ViroPharma shall have furnished any document incorporated by reference therein, amendments or in any amendment supplements thereto) or supplement thereto or in any preliminary prospectus, or arises arising out of or is based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or arises contained in any information concerning such Holder furnished in writing to ViroPharma by such Holder expressly for use in such Registration Statement.
(b) In connection with any Registration Statement in which a Holder is participating pursuant to Section 8 hereof, each such Holder shall furnish to ViroPharma in writing such information with respect to such Holder as ViroPharma may reasonably request or as may be required by law specifically for use in connection with any such Registration Statement or prospectus. Each Holder shall indemnify and hold harmless ViroPharma, any underwriter retained by ViroPharma and their respective directors, officers, employees and each Person who controls ViroPharma or such underwriter (within the meaning of the Securities Act and the Exchange Act) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) arising out of or is based upon any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if ViroPharma shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, if such statement or arises out of or is based omission was made in reliance upon and in conformity with any omission or alleged omission information concerning such Holder furnished in writing to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, ViroPharma by such Holder specifically for use in the light preparation of such Registration Statement or prospectus; provided, however, -------- ------- that the circumstances under which they were made, not misleading, in connection with total amount to be indemnified by such information; and, subject Holder pursuant to this Section 8.6(b) shall be limited to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of Holders in the Registrable Securities pursuant offering to which the Shelf Registration Statement giving rise to such indemnification obligationor prospectus relates.
(c) If Any Person entitled to indemnification hereunder (the "Indemnified Party") agrees to give prompt written notice to the indemnifying party (the "Indemnifying Party") after the receipt by the Indemnified Party of any written notice of the commencement of any action, suit suit, proceeding or proceeding (each, a “Proceeding”) is brought against any person investigation or threat thereof made in respect of writing for which indemnity may be sought the Indemnified Party intends to claim indemnification or contribution pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such ProceedingAgreement; provided, however, that the omission failure so to notify such the Indemnifying Party shall -------- ------- not relieve such the Indemnifying Party from of any liability which that it may have to the Indemnified Party hereunder unless, and only to the extent that, such failure results in the Indemnifying Party's forfeiture of substantive rights or defenses. If notice of commencement of any such action is given to the Indemnifying Party as above provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may wish, jointly with any other Indemnifying Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party or otherwiseParty. Such The Indemnified Party shall have the right to employ its own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel (other than reasonable costs of investigation) shall be at paid by the expense Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory to the Indemnified Party in its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party unless and the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with by the defense same counsel would be inappropriate under applicable standards of such Proceeding professional conduct or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that (y) there may be one or more legal defenses available to it that which are different from, from or additional to or in conflict with those available to the Indemnifying Party. In either of such Indemnifying Party (in which case such cases, the Indemnifying Party shall not have the right to direct that portion of assume the defense of such Proceeding action on behalf of the such Indemnified Party, but such . No Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected entered into without its written consent if (i) such settlement is entered into more other than 60 Business Days after receipt by such Indemnifying Party of in the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to case where the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party unconditionally released from liability and indemnity could have been sought hereunder by such Indemnified Partyits rights are not adversely effected), unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does which consent shall not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partybe unreasonably withheld.
(d) If the indemnification provided for in this Section 6 8.6 from the Indemnifying Party pursuant to applicable law is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 hereunder in respect of any losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses referred to therein, then each applicable the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand Indemnifying Party and of the Holders or the Initial Purchasers on the other Indemnified Party in connection with the statements or omissions actions which resulted in such losses, claims, damages, liabilities or expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault faults of the Company on the one hand such Indemnifying Party and of the Holders or any Initial Purchaser on the other Indemnified Party shall be determined by reference to, among other things, whether the any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by the Company by, such Indemnifying Party or by the Holders or such Initial Purchaser Indemnified Party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The amount paid or payable by a party as a result of the losses, claims, damages, expenses, liabilities, claims liabilities and actions expenses referred to above shall be deemed to include include, subject to the limitations set forth in Sections 8.6(a), (b) and (c), any reasonable legal or other fees fees, charges or expenses reasonably incurred by such party in connection with investigating any investigation or defending any Proceeding.
(e) proceeding. The Company, the Holders and the Initial Purchasers parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6 8.6(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equityPerson.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees Strategic REIT and the Issuer agree to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and Strategic REIT and the Company Issuer shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (iStrategic REIT and the Issuer shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon (i) any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company Strategic REIT expressly for use therein and in, any Shelf Registration Statement or any Prospectus or (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating a disposition, pursuant to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concernedby an Indemnified Party during a Suspension Period, to the extent that a prospectus relating provided such Indemnified Party received, prior to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection disposition, a Suspension Notice with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given respect to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderSuspension Period; provided further, however, that this indemnity agreement will be in addition to any liability which Strategic REIT and the Company Issuer may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless Strategic REIT and the CompanyIssuer, each of its directors, officers, employees, representatives, agents and any person who controls Strategic REIT and the Company Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Guarantor Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Guarantor Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company Strategic REIT expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or arises out with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that Strategic REIT shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), or is based upon any omission or alleged omission to state (C) a material fact necessary in order to make public sale of Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were mademost recent applicable Prospectus provided to such Holder by Strategic REIT pursuant to Section 3(i) or Section 2(d)(i)(C), not misleading, provided Strategic REIT shall have theretofore provided such Holder with copies of such Prospectus in connection with a timely manner so as to permit such informationdelivery; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, Strategic REIT and the Company Issuer for any legal or other expenses reasonably incurred by Strategic REIT and the Company Issuer or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to Strategic REIT and the Company Issuer or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by Strategic REIT and the Company Issuer, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of Strategic REIT and the Company Issuer, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of Strategic REIT and the Company Issuer, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by Strategic REIT and the Company Issuer or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The CompanyStrategic REIT, the Issuer, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the CompanyStrategic REIT, or the CompanyIssuer, or Strategic REIT’s or the Issuer’s officers or directors or any person controlling Strategic REIT or the Company Issuer and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Strategic Hotels & Resorts, Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend ViroPharma shall indemnify and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial Purchaser or Holder within (including the meaning officers and directors of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”SaSy) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arising out of or is based upon any untrue statement untrue, or alleged untrue allegedly untrue, statement of a material fact contained in any Shelf Registration Statement Statement, prospectus or Prospectus, including preliminary prospectus or notification or offering circular (as amended or supplemented if ViroPharma shall have furnished any document incorporated by reference therein, amendments or in any amendment supplements thereto) or supplement thereto or in any preliminary prospectus, or arises arising out of or is based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or arises contained in any information concerning such Holder furnished in writing to ViroPharma by such Holder expressly for use in such Registration Statement.
(b) Each Holder shall indemnify and hold harmless ViroPharma, any underwriter retained by ViroPharma and their respective directors, officers, employees and each Person who controls ViroPharma or such underwriter (within the meaning of the Securities Act and the Exchange Act) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) arising out of or is based upon any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if ViroPharma shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, if such statement or arises out of or is based omission was made in reliance upon and in conformity with any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which information concerning such Holder may otherwise have furnished in writing to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received ViroPharma by such Holder upon specifically for use in the sale preparation of the Registrable Securities pursuant to the Shelf such Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingprospectus; provided, however, that the omission total amount to be indemnified by such -------- ------- Holder pursuant to this Section 8.6(b) shall be limited to the net proceeds received by the Holders in the offering to which the Registration Statement or prospectus relates.
(c) Each Person entitled to indemnification hereunder (the "Indemnified Party") agrees to give prompt written notice to the indemnifying party (the "Indemnifying Party") after the receipt by the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; provided, however, that the failure so to notify such the Indemnifying Party shall -------- ------- not relieve such the Indemnifying Party from of any liability which that it may have to the Indemnified Party hereunder unless, and only to the extent that, such failure results in the Indemnifying Party's forfeiture of substantive rights or defenses. If notice of commencement of any such action is given to the Indemnifying Party as above provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may wish, jointly with any other Indemnifying Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party or otherwiseParty. Such The Indemnified Party shall have the right to employ its own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel (other than reasonable costs of investigation) shall be at paid by the expense Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory to the Indemnified Party in its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party unless and the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with by the defense same counsel would be inappropriate under applicable standards of such Proceeding professional conduct or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that (y) there may be one or more legal defenses available to it that which are different from, from or additional to or in conflict with those available to the Indemnifying Party. In either of such Indemnifying Party (in which case such cases, the Indemnifying Party shall not have the right to direct that portion of assume the defense of such Proceeding action on behalf of the such Indemnified Party, but such . No Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected entered into without its written consent if (i) such settlement is entered into more other than 60 Business Days after receipt by such Indemnifying Party of in the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to case where the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party unconditionally released from liability and indemnity could have been sought hereunder by such Indemnified Partyits rights are not adversely effected), unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does which consent shall not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partybe unreasonably withheld.
(d) If the indemnification provided for in this Section 6 8.6 from the Indemnifying Party pursuant to applicable law is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 hereunder in respect of any losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses referred to therein, then each applicable the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand Indemnifying Party and of the Holders or the Initial Purchasers on the other Indemnified Party in connection with the statements or omissions actions which resulted in such losses, claims, damages, liabilities or expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault faults of the Company on the one hand such Indemnifying Party and of the Holders or any Initial Purchaser on the other Indemnified Party shall be determined by reference to, among other things, whether the any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by the Company by, such Indemnifying Party or by the Holders or such Initial Purchaser Indemnified Party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The amount paid or payable by a party as a result of the losses, claims, damages, expenses, liabilities, claims liabilities and actions expenses referred to above shall be deemed to include include, subject to the limitations set forth in Sections 8.6(a), (b) and (c), any reasonable legal or other fees fees, charges or expenses reasonably incurred by such party in connection with investigating any investigation or defending any Proceeding.
(e) proceeding. The Company, the Holders and the Initial Purchasers parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6 8.6(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equityPerson.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to HTCC shall indemnify, defend and hold harmless each Initial Purchaserto the fullest extent permitted by applicable law, each HolderShareholder and its delegee, each personofficers, if anydirectors, employees, agents, and any Person who controls any Initial Purchaser or Holder such a party 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 Section 20 common law or otherwise), joint or several, resulting from any violation by HTCC of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents provisions of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in (i) any Shelf Registration Statement registration statement or Prospectus, including any document incorporated by reference therein, prospectus (and as amended or in any amendment supplemented if amended or supplement thereto supplemented) or in any preliminary prospectus; or (ii) any application or other documentation or communication executed by or on behalf of HTCC or based upon written information furnished by or on behalf of HTCC filed in any jurisdiction in order to qualify any securities covered by such registration under the “blue sky” or securities laws thereof, or arises out of or is based upon caused by any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, 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 a Shareholder furnished in writing to HTCC by such Shareholder expressly for use therein. If the Public Offering pursuant to any registration statement provided for under this Agreement 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 Shareholder) shall affect the obligations of HTCC to indemnify Shareholders or any other Person pursuant to the preceding sentence. If the Public Offering pursuant to any registration statement provided for under this Agreement is made through underwriters, HTCC agrees to enter into an underwriting agreement in customary form with such underwriters and HTCC agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the Company meaning of Section 15 of the Securities Act to the same extent as herein before provided with respect to the indemnification of the holders of Registrable Securities; provided that HTCC shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending 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, expense, liability, claim liability (or action proceedings in respect thereof; provided, however, that (i) insofar as any or expense for which indemnification is claimed results from such loss, damage, expense, liability, claim underwriter’s failure to send or action arises out give a copy of an amended or is based upon any supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the Person if such statement or omission was corrected in such amended or supplemented final prospectus if the Company had previously furnished copies thereof prior to such Holder; written confirmation and the underwriter was provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to with such Indemnified Partyamended or supplemented final prospectus.
(b) Each HolderIn connection with any registration statement in which any Shareholder, to the extent it is a holder of Registrable Securities, is participating, each Shareholder, severally and not jointlyjointly with each other holder of Registrable Securities who is participating in such registration statement, agrees to shall indemnify, defend to the fullest extent permitted by applicable law, HTCC, each underwriter and hold harmless the Companytheir respective officers, its directors, officersemployees and agents, employeesif any, representativesand each Person, agents and any person if any, who controls the Company HTCC or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachAct, a “Company Indemnified Party”) from and against any losslosses, damageclaims, expensedamages, liability, claim liabilities (or any actions proceedings in respect thereof (including the reasonable cost of investigationthereof) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinfact, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state of a material fact required to be stated in any Shelf Registration Statement the registration statement or in prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, in connection with such information; and, subject but only to the limitation set forth immediately preceding this clause, each Holder extent that such untrue statement is contained in or such omission is from information so concerning a Shareholder furnished in writing by such Shareholder expressly for use therein; provided that such Shareholder’s obligations hereunder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition limited to any liability which such Holder may otherwise have an amount equal to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale to Shareholder of the Registrable Securities sold pursuant to the Shelf Registration Statement giving rise to such indemnification obligationregistration statement.
(c) If Any Person entitled to indemnification under the provisions of this Agreement shall (i) give prompt notice to the indemnifying party of any action, suit or proceeding claim with respect to which it seeks indemnification and (each, ii) unless in such indemnified party’s reasonable judgment a “Proceeding”) is brought against any person conflict of interest between such indemnified and indemnifying parties may exist in respect of which indemnity may be sought pursuant such claim, permit such indemnifying party to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingclaim, with counsel reasonably satisfactory to the indemnified party; providedand if such defense is so assumed, however, that the omission to notify such Indemnifying Party indemnifying party shall not relieve enter into any settlement without the consent of the indemnified party if such Indemnifying Party from settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any liability for any settlement made without its consent (which it may have shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Agreement shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such Indemnified Party or otherwise. Such Indemnified Party indemnifying party shall have the right not be obligated to employ its own counsel in any such case, but pay the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses firm of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable (in addition to any required local counsel) for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt all parties indemnified by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding indemnifying party in respect of which such Indemnified Party is or could have been claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release any other of such Indemnified Party from all liability on claims that are the subject matter of indemnified parties in respect to such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyclaim.
(d) If for any reason the indemnification provided for in this Section 6 foregoing indemnity is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to thereinunavailable, then each applicable Indemnifying Party, in lieu of the indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company indemnifying party on the one hand and the Holders or the Initial Purchasers indemnified party on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable lawlaw or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the Company on indemnifying party and the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, indemnified party as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6foregoing, no Holder each Shareholder shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise such holder would have been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionto an indemnified party if the indemnity under Paragraph 7(b) was available. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations obligation of any Person to contribute pursuant to this Section 6 are Paragraph 7(d) shall be several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided .
(e) An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Paragraph 7 to or for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any the account of the indemnified party at law from time to time promptly upon receipt of bills or in equityinvoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution provisions agreements contained in this Section 6 Paragraph 7 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder Shareholder or Initial Purchaser its agents or any person controlling Person, if any, who controls such holder as aforesaid, and shall survive the transfer of the Common Stock by Shareholders and the termination of this Agreement for any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holderreason.
Appears in 1 contract
Sources: Registration Rights Agreement (Hungarian Telephone & Cable Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserholder and each affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, each Holder, each person, if any, who controls or under any Initial Purchaser Blue Sky Law or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and regulation against any losslosses, damageclaims, expensedamages, liabilityor liabilities, claim joint or any actions in respect thereof (including the reasonable cost of investigation) several, to which such Indemnified Party holder may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectuspreliminary prospectus, including any document incorporated by reference thereinregistration statement, prospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each such holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, damage, expense, liability, action or claim regardless of the negligence of any such holder or action in respect thereofaffiliate; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense, liability, claim or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained registration statement or prospectus, or any such amendment or supplement thereto, in this subsection (a) shall not inure reliance upon and in conformity with written information furnished to the benefit of any Holder from whom the person asserting Company by any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyholder expressly for use therein.
(b) Each Holder, severally and not jointly, agrees holder of Common Stock registered pursuant to indemnify, defend this Agreement will indemnify and hold harmless the CompanyCompany against any losses, its directorsclaims, officers, employees, representatives, agents and any person who controls damages or liabilities to which the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachmay become subject, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary prospectus, registration statement or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or was made in any preliminary prospectus, registration statement or prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the light Company by such holder expressly for use therein.
(c) Promptly after receipt by an indemnified party under Sections 8(a) or (b) above of the circumstances commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under which they were madeeither such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not misleadingrelieve it from any liability that it may otherwise have to any indemnified party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof the indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After notice from the indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such subsections for any legal expenses of other counsel or any other expense, in each case subsequently incurred by such indemnified party, in connection with such information; and, subject the defense thereof other than reasonable costs of investigation incurred prior to the limitation set forth immediately preceding this clauseassumption by the indemnifying party, each Holder shall reimburseunless such expenses have been specifically authorized in writing by the indemnifying party, 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 incurredappropriate, and such indemnified party has been advised by counsel that the Company for any legal or other expenses reasonably incurred representation of such indemnified party and the indemnifying party by the Company same counsel would be inappropriate due to actual or any such controlling person potential differing interests between them, in connection each of which cases the fees of one counsel (together with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement appropriate local counsel) for the indemnified party will be in addition to any liability which such Holder may otherwise have to paid by the Company or any of its controlling personsindemnifying party. In no event shall the liability of any selling Holder of Registrable Securities hereunder indemnifying party be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person liable in respect of which indemnity may be sought pursuant to either subsection (a) or (b) any amounts paid in settlement of this Section 6, such person (any action unless the “Indemnified Party”) indemnifying party shall promptly notify have approved the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing terms of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingsettlement; provided, however, that the omission to notify such Indemnifying Party consent or approval shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall unreasonably be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partywithheld.
(d) If the indemnification provided for in this Section 6 8 is unavailable or insufficient to hold harmless an Indemnified Party indemnified party under subsections (aSection 8(a) and (bor 8(b) of this Section 6 in respect of any losses, damagesclaims, expenses, liabilities, claims damages or actions liabilities (or action in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders holder or the Initial Purchasers on the other hand holders from this Agreement and from the offering of the Registrable Securities or (ii) if shares of Common Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other holders in connection with the statements statement or omissions which that resulted in such losses, damagesclaims, expenses, liabilities, claims damages or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders or such Initial Purchaser holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers holders agree that it would not be just and equitable if contribution pursuant to this Section 6 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 of allocation which that does not take into account of the equitable considerations referred to above in this subsection (de). 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) above. Notwithstanding the provisions of referred to above in this Section 6, no Holder 8(d) shall be required deemed to contribute include any amount legal or other expenses reasonably incurred by such indemnified party in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of connection with investigation or defending any damages which it has otherwise been required to pay by reason of such untrue action or alleged untrue statement or omission or alleged omissionclaim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for Notwithstanding any provision in this Section 6 are not exclusive and 8(d) to the contrary, no holder shall not limit be liable for any rights 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 remedies which may otherwise be available to any indemnified party at law or in equityliabilities.
(fe) The indemnity and contribution provisions contained in obligations of the Company under this Section 6 8 shall remain operative and be in full force and effect regardless of (i) addition to any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling liability that the Company may otherwise have and (iii) shall extend, upon the sale 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 Security 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 agrees to indemnify, defend and hold harmless each Initial Purchaser, Holder and each Holder, each person, if any, person who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Holder Indemnified Party”), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, except insofar as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liabilityliability or claim arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, claim or action omitted from, and in respect thereof; conformity with information furnished in writing by or on behalf of any Holder to the Company expressly for use therein, provided, however, that (ithe Company shall not be required to provide any indemnify pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with written information pertaining to the Initial Purchaser or Holder furnished in writing by or on behalf of any the Initial Purchaser or Holder to the Company expressly for use therein in, any Shelf Registration Statement or any Prospectus, including information provided by such Holder in a Notice and (ii) Questionnaire; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the such Registrable Securities concernedSecurities, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition not apply to any loss, damage, expense, liability which or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder to whom the Company may otherwise have to such Indemnified Partytheretofore provided a Suspension Notice in accordance with Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information, (ii) arises out of or is based upon a sale of Registrable Securities during a Suspension Period by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i), or (iii) arises out of or is based upon a sale of Registrable Securities by a Notice Holder without delivery of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(g) or Section 2(d); and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person Company Indemnified Party in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwiseotherwise except to the extent that the Indemnifying Party is prejudiced thereby. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, liabilities or claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party Indemnified Party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a "CONTROLLING PERSON"), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”"INDEMNIFIED PARTY"), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; providedPROVIDED, howeverHOWEVER, that (ithe Company shall not be required to provide any indemnity pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) in, any Shelf Registration Statement or any Prospectus; PROVIDED FURTHER that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary or final prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the such Registrable Securities concernedSecurities, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus correct prospectus, if the Company had previously notified the Holder that such preliminary or final prospectus should not be used and furnished corrected copies thereof to such HolderHolder in a timely manner so as to permit timely delivery by such Holder of a copy of the corrected prospectus at or prior to written confirmation of sale; PROVIDED FURTHER, that this indemnity agreement will not apply to any loss, damage, expense, liability, claim or action arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder to whom the Company theretofore provided furthera Suspension Notice in accordance with Section 3(i); PROVIDED FURTHER, howeverHOWEVER, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, representatives and agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”"COMPANY INDEMNIFIED PARTY") from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the "HOLDER INFORMATION") furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or (ii) arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleadingProspectus, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, or necessary to make such Holder Information not misleading, (iii) arises out of or is based upon a sale of Registrable Securities during a Suspension Period by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i), or (iv) arises out of or is based upon a sale of Registrable Securities by a Notice Holder without delivery of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(g) or Section 2(d), if a prospectus was required to be delivered by such Holder under the Securities Act in connection with such informationsale and the Holder had received copies of the most recent applicable prospectus in a timely manner so as to permit such delivery; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person Company Indemnified Party in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling personsCompany Indemnified Party. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”"PROCEEDING") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified "INDEMNIFIED Party”") shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”"INDEMNIFYING PARTY") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; providedPROVIDED, howeverHOWEVER, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent the Indemnifying Party is materially prejudiced thereby. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ ' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchaser, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s 's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (SFBC International Inc)
Indemnification; Contribution. (ai) The Company agrees hereby indemnifies, to indemnify, defend and hold harmless each Initial Purchaserthe fullest extent permitted by law, each Holderholder of Registrable Securities, its officers and directors, if any, and each person, if any, who controls any Initial Purchaser or Holder such holder within the meaning of Section 15 of the Securities Act Act, against all losses, claims, damages, liabilities (or Section 20 of the Exchange Act (a “Controlling Person”proceedings in respect thereof) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person expenses (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or common law or otherwise), insofar as such lossjoint or several, damage, expense, liability, claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement registration statement, prospectus (as amended or Prospectus, including supplemented if the Company shall have furnished any document incorporated by reference therein, amendments or in any amendment supplements thereto) or supplement thereto or in any preliminary prospectus, or arises out of or is based upon caused by any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were madetherein, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as such indemnification shall not extend to any such losslosses, damageclaims, expensedamages, liability, claim liabilities (or action arises out of proceedings in respect thereof) or is based upon expenses which are caused solely by any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted by any omission or alleged omission from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company by such holder expressly for use therein and therein.
(ii) If the offering pursuant to any registration statement provided for under this Section 1 is effected by underwriters, the Company agrees to enter into an underwriting agreement in customary form and substance with such underwriters and to indemnify such 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 to the same extent as provided in the preceding paragraph (i) of this Section 1(e) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementthe indemnification of the holders of Registrable Securities; provided, however, the indemnity agreement contained in this subsection (a) Company shall not inure be required to the benefit of any Holder from whom the person asserting indemnity any such lossesunderwriter, damages, expenses, liabilities, claims or actions purchased any officer or director of such underwriter or any person who controls such underwriter within the Registrable meaning of Section 15 of the Securities concernedAct, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, claim, damage, expenseliability (or proceedings in respect thereof) or expense for which
(iii) In connection with any registration statement with respect to which a holder of Registrable Securities is participating, liability, claim or action of each such Holder results from the fact that there was not sent or given to such person, at or prior holder shall furnish to the written confirmation of the sale of Company in writing such Registrable Securities to such person, a copy of the final prospectus if information as shall be reasonably requested by the Company had previously furnished copies thereof to for use in any such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, registration statement or prospectus and shall indemnify severally and not jointly, agrees to indemnifythe fullest extent permitted by law, defend and hold harmless the Company, its directorsofficers and directors and each person, officersif any, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachAct, a “Company Indemnified Party”) from and against any losslosses, damageclaims, expensedamages, liability, claim liabilities (or any actions proceedings in respect thereof (including the reasonable cost of investigationthereof) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state of a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, in the registration statement or arises out of prospectus or is based upon any omission preliminary prospectus or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment thereof or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were madethereto, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that each such holder shall be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises solely out of or is based solely 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 holder, as such, furnished in writing to the Company by such holder specifically for use in such registration statement or prospectus; and provided, further, however, that the liability of each holder hereunder shall be limited solely to such amount of any such loss, claim, damage, liability or expense which is equal to the proportion that the public offering price of the Registrable Securities sold by such holder under such
(iv) If the offering pursuant to any registration statement with respect to which holders of Registrable Securities are participating, is effected by underwriters, each such holder agrees to enter into an underwriting agreement in customary form and substance with such underwriters, and to indemnify such 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 to the same extent as provided in the preceding paragraph with respect to indemnification by such holder of the Company, but subject to the same limitation as set forth in the proviso to paragraph (ii) of this Section 1(e) with respect to indemnification by the Company of such underwriters, officers, directors and controlling persons.
(v) Any person seeking indemnification under provision of this Section 1(e) shall, promptly after receipt by such person of notice of the commencement of any action, suit, claim or proceeding, notify each party against whom indemnification is to be sought in writing of the commencement thereof; provided, however, the failure so to notify such Indemnifying Party an indemnifying party shall not relieve such Indemnifying Party the indemnifying party from any liability which it may have under this Section 1(e) (except to the extent that it has been prejudiced in any material respect by such failure) or from any liability which the indemnifying party may otherwise have. In case any such action, suit, claim or proceeding is brought against any indemnified party, and it 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 from such indemnified party, to assume the defense thereof with counsel satisfactory to such Indemnified Party indemnified party. Notwithstanding the foregoing, the indemnified party or otherwise. Such Indemnified Party parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party indemnified party or parties unless (i) the employment of such counsel shall have been authorized in writing by one of the indemnifying parties (provided that in the case of indemnification pursuant to paragraphs (iii) or (iv) of this Section 1(e), the employment of such Indemnifying Party counsel shall have been authorized by not less than 66 2/3% of the holders of Registrable Securities who are participating in the registration in respect of which indemnification is sought) in connection with the defense of such Proceeding suit, action, claim or such Indemnifying Party proceeding; (ii) the indemnifying parties shall not have employed counsel to have take charge of the defense of such Proceeding action, suit, claim or proceeding within 30 days a reasonable time after notice of commencement of the receipt of notice thereof action, suit, claim or proceeding; or (iii) such Indemnified Party indemnified party or parties shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that or them which are different from, from or additional to or in conflict with those available to such Indemnifying Party one or all of the indemnifying parties (in which case such Indemnifying Party the indemnifying parties shall not have the right to direct that portion of the defense of such Proceeding action, suit, claim or proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Partyindemnified party or parties), in any of which events such reasonable the fees and expenses of one counsel or firm of counsel selected by the indemnified party or parties shall be borne by such Indemnifying Party and paid as incurred the indemnifying parties. Anything in this paragraph (it being understoodv) to the contrary notwithstanding, however, that such Indemnifying Party an indemnifying party shall not be liable for the expenses settlement of more than one separate counsel in any one Proceeding action, suit, claim or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party proceeding effected without its prior written consent (which consent shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify unreasonably withheld). Such indemnification shall remain in full force and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement effect regardless of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, investigation made by or on behalf of a participating holder of Registrable Securities, its officers, directors or any person, if any, who controls such Indemnified Partyholder as aforesaid, and shall survive the sale, transfer or other disposition of such securities by such holder.
(dvi) If for any reason the foregoing indemnification provided for in this Section 6 is unavailable unavailable, or is insufficient to hold harmless, an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to thereinindemnified party, then each applicable Indemnifying Party, in lieu of the indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses (ix) in such proportion as is appropriate to reflect the relative benefits received by the Company indemnifying party on the one hand and the Holders or the Initial Purchasers indemnified party on the other hand from the offering of the Registrable Securities hand, or (iiy) if the allocation provided by clause (ix) above is not permitted by applicable lawlaw or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits referred received by the indemnifying party on the one hand (taking into consideration the fact that the registration rights provided in this Section 1 are intended and hereby understood to be a material inducement to the Purchasers to purchase the Registrable Securities and, in clause (irespect of this Agreement, constitutes good and valuable consideration) above and the indemnified party on the other, but also the relative fault of the Company on indemnifying party and the one hand and of the Holders or the Initial Purchasers on the other indemnified party in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as addition to any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6foregoing, no Holder underwriter shall be required to contribute any amount in excess of the amount by which the total aggregate price at which the Registrable Securities sold underwritten by it were offered and distributed to the public exceeds the amount of any damages which it such underwriter has otherwise been required to pay by reason of such untrue statement or omission or alleged untrue statement or omission or alleged omission. No ; and no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations obligation of any underwriters to contribute provide contribution pursuant to this Section 6 are 1(e) shall be several and not joint in proportion to the their respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equityunderwriting commitments.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration and Preemptive Rights Agreement (Medialink Worldwide Inc)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserunderwriter, each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees, representatives and agents of any of them (a "Selling Holder"), and each person, if any, person who controls any Initial Purchaser or Holder of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “"Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”")), from and against any lossand all losses, damageclaims, expensedamages, liabilityexpenses and liabilities, claim joint or several (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any actions in respect thereof (including claim asserted, as the reasonable cost same are incurred), to which they, or any of investigation) which such Indemnified Party them, may incur or become subject to under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities arise out of or is are based upon on (i) any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, such registration statement (including any document incorporated by reference thereinrelated preliminary or definitive prospectus, or in any amendment or supplement thereto to such registration statement or in any preliminary prospectus, ) or arises out of or is based upon (ii) any omission or alleged omission to state in such document a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto it or necessary to make the statements therein in it not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any the Company will not be liable to the extent that such loss, claim, damage, expense, liability, claim expense or action liability arises out of or from and is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any an untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained reliance on and in this subsection (a) shall not inure conformity with information furnished in writing to the benefit of any Company by such underwriter, Selling Holder from whom or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, information furnished in writing to the extent that a prospectus relating to Company by such Registrable Securities was required to be delivered by Such Selling Holder under the Securities Act expressly for use in connection with such purchase and any registration statement, such loss, damage, expense, liability, claim or action of such Selling Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend indemnify and hold harmless each underwriter, the Company, Company (including its directors, officers, employees, representativesrepresentatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees, representatives and agents of any of them, and any each person who controls the Company any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachAct), a “Company Indemnified Party”) from and against any lossand all losses, damageclaims, expensedamages, liabilityexpenses and liabilities, claim joint or several, to which they, or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party them, may incur or become subject to under the Securities Act, the Exchange Act or otherwiseother federal or state statutory law or regulation, insofar as such loss, damage, expense, liability, claim at common law or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder otherwise to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, same extent provided in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling personssentence. In no event event, however, shall the liability of any a Selling Holder for indemnification under this Section 5(a) exceed the lesser of (i) such selling Holder of Registrable Securities hereunder be greater in amount than Holder's pro rata share for such losses, claims, damages, expenses and liabilities or (ii) the dollar amount of the net proceeds received by such Selling Holder upon the from its sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to under such indemnification obligationregistration statement.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 indemnified party in respect of any losses, claims, damages, expenses, liabilities, claims expenses or actions liabilities referred to therein, then each applicable Indemnifying Partyindemnifying party under this Section 5, in lieu of indemnifying such Indemnified Partyindemnified party thereunder, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims expenses or actions liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on Company, the one hand other Selling Holders and the Holders or the Initial Purchasers on the other hand underwriters from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on Company, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses, expenses or liabilities, claims or actions, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand under Section 3(a) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the other Selling Holders and the underwriters shall in all cases be governed by clause (ii) above. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company on Company, the one hand Selling Holders and of the Holders or any Initial Purchaser on the other underwriters shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by Company, the Selling Holders or such Initial Purchaser the underwriters and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Selling Holders, and the Initial Purchasers underwriters agree that it would not be just and equitable if contribution pursuant to this Section 6 5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) abovethe immediately preceding paragraph. Notwithstanding the provisions of this Section 6In no event, no however, shall a Selling Holder shall be required to contribute any amount under this Section 5(b) in excess of the amount lesser of (i) such selling Holder's pro rata share for such losses, claims, damages, expenses and liabilities or (ii) the net proceeds received by which the total price at which the such Selling Holder from its sale of Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of under such untrue or alleged untrue statement or omission or alleged omissionregistration statement. No person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
(c) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 5 shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim, payable as the same are incurred. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, indemnification and not joint. The remedies contribution provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall 5 will remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser the indemnified parties or any officer, director, employee, agent or controlling person controlling any Holder or Initial Purchaserof the indemnified parties. No indemnifying party, or in the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale defense of any Registrable Security by such claim or litigation, shall enter into a consent of entry of any Holderjudgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to shall indemnify, defend and hold harmless each Initial Purchaserto ------------------------------ the fullest extent permitted by law, each Holderholder of Registrable Securities, its officers, directors and agents, if any, and each personPerson, if any, who controls any Initial Purchaser or Holder such holder within the meaning of Section 15 of the Securities Act Act, against all losses, claims, damages, liabilities (or Section 20 of the Exchange Act (a “Controlling Person”proceedings in respect thereof) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person expenses (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or common law or otherwise), insofar as such lossjoint or several, damage, expense, liability, claim resulting from any violation by the Company of the provisions of the Securities Act or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement registration statement or Prospectus, including any document incorporated by reference therein, prospectus (and as amended or in any amendment supplemented if amended or supplement thereto supplemented) or in any preliminary prospectus, prospectus or arises out of or is based upon caused by any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, 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 offering pursuant to any registration statement provided for under this Section 2 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 offering pursuant to any registration statement provided for under this Section 2 is made through underwriters, the Company agrees, to the extent required by such underwriters, to enter into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, their officers, directors and agents, if any, and each Person, if any, who controls such underwriters within the meaning 12 of Section 15 of the Securities Act to the same extent as hereinbefore provided with respect to the indemnification of the holders of Registrable Securities; provided that the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending 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, to the extent that the loss, claim, damage, expense, liability, claim liability (or action proceedings in respect thereof; provided, however, that (i) insofar as any or expense for which indemnification is claimed results from such loss, damage, expense, liability, claim underwriter's failure to send or action arises out give a copy of an amended or is based upon any supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus Person if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid omission was corrected in such amended or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred supplemented final prospectus prior to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders written confirmation and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation underwriter was provided with such amended or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equitysupplemented final prospectus.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration StatementStatement or any Prospectus, the indemnity agreement contained in this subsection (a) shall not inure including, without limitation, information provided to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered Company by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, in a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderNotice and Questionnaire; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party; provided further, however, that no Initial Purchaser or Holder shall be entitled to this indemnity to the extent, and only to the extent, such loss, damage, expense, liability, claim or action arises out of a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities by such Initial Purchaser or Holder, as the case may be, during a Suspension Period, provided such Initial Purchaser or Holder, as the case may be, received, prior to such disposition, a Suspension Notice with respect to such Suspension Period.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, representatives and agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in Prospectus, or any amendment or supplement thereto thereto, or necessary to make the statements therein such Holder Information not misleading; (B) a sale, by such Holder, pursuant to a Shelf Registration Statement, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder with a Suspension Notice with respect to such Suspension Period; or arises out (C) a public sale of or is based upon any omission or alleged omission to state a material fact necessary in order to make Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were made, not misleading, in connection with most recent applicable Prospectus provided to such informationHolder by the Company pursuant to Section 3(h) or Section 2(d)(i)(C); and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent such Indemnifying Party is materially prejudiced by such omission. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement or shall not have, prior to the date of such settlement, reimbursed such Indemnified Party for the portion of such requested amount as the Indemnifying Party believes in good faith to be reasonable (provided such Indemnifying Party has theretofore provided written notice to such Indemnified Party that the Indemnifying Party disputes in good faith the reasonableness of the unpaid balance) and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein (other than as a result of the limitations on indemnification specified therein), then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each the Initial PurchaserPurchasers, each Holder, each personperson (a “Controlling Person”), if any, who controls any the Initial Purchaser Purchasers or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of Statement or any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderProspectus; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, or arises out (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or with respect to which such Holder is named as a selling security holder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(i), or is based upon any omission or alleged omission to state (C) a material fact necessary in order to make public sale of Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were mademost recent applicable Prospectus provided to such Holder by the Company pursuant to Section 2(c)(i)(C), not misleading, provided the Company shall have theretofore provided such Holder with copies of such Prospectus in connection with a timely manner so as to permit such informationdelivery; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, unless the Indemnifying Party shall be materially prejudiced as a result of the failure to deliver notice, and then only to the extent of such prejudice. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request and as required by this Agreement prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could reasonably be expected have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or the Initial PurchaserPurchasers, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify, defend indemnify ------------------------------- and hold harmless each Initial Purchaser, each Designated Holder, its partners, directors, officers, affiliates and each person, if any, Person who controls any Initial Purchaser or Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”Act) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), such Designated Holder from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) which such Indemnified Party may incur (each, a "Liability and collectively, "Liabilities"), arising out of or become subject based upon any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading under the Securities Actcircumstances such statements were made, the Exchange Act or otherwise, except insofar as such loss, damage, expense, liability, claim or action Liability arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated contained in any Shelf such Registration Statement Statement, preliminary prospectus or final prospectus in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, reliance and in conformity with information concerning such Designated Holder furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company by such Designated Holder expressly for use therein and (ii) with respect therein, including, without limitation, the information furnished to the Company pursuant to Section 7(b). The Company shall also provide customary indemnities to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit underwriters of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concernedSecurities, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, their officers, employees, representatives, agents directors and any person employees and each Person who controls the Company such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 Act) to the same extent as provided above with respect to the indemnification of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder Designated Holders of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationSecurities.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Egain Communications Corp)
Indemnification; Contribution. (a) The Company agrees and the Subsidiary Guarantor, jointly and severally, agree to indemnify, defend and hold harmless each Initial Purchaser, Holder and each Holder, each person, if any, person who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Holder Indemnified Party”), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) ), which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) except insofar as any such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted fromfrom any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or any preliminary prospectus, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company or the Subsidiary Guarantor expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partytherein.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the CompanyCompany and the Subsidiary Guarantor, its directors, officers, employees, representatives, agents their directors and officers and any person who controls the Company and the Subsidiary Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) ), which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company or the Subsidiary Guarantor expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwiseotherwise except to the extent such Indemnifying Person has been materially prejudiced by such failure. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have take charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, liabilities or claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Subsidiary Guarantor on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Subsidiary Guarantor on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions omissions, which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. The relative fault of the Company and the Subsidiary Guarantor on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company Company, the Subsidiary Guarantor or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Subsidiary Guarantor and the Initial Purchasers Holders agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages damages, which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, the Subsidiary Guarantor or the Company’s their officers or directors or any person controlling the Company or the Subsidiary Guarantor and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (United Industrial Corp /De/)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, Holder and each Holder, each person, if any, person who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Holder Indemnified Party”), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, except insofar as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liabilityliability or claim arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, claim or action omitted from, and in respect thereof; conformity with information furnished in writing by or on behalf of any Holder to the Company expressly for use therein, provided, however, that (ithe Company shall not be required to provide any indemnity pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with written information pertaining to the Initial Purchaser or Holder furnished in writing by or on behalf of any the Initial Purchaser or Holder to the Company expressly for use therein in, any Shelf Registration Statement or any Prospectus, including information provided by such Holder in a Notice and (ii) Questionnaire; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the such Registrable Securities concernedSecurities, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition not apply to any loss, damage, expense, liability which or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder to whom the Company may otherwise have to such Indemnified Partytheretofore provided a Suspension Notice in accordance with Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information, (ii) arises out of or is based upon a sale of Registrable Securities during a Suspension Period by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i), or (iii) arises out of or is based upon a sale of Registrable Securities by a Notice Holder without delivery of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(g) or Section 2(d); and, subject to the limitation set forth immediately preceding following this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person Company Indemnified Party in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwiseotherwise except to the extent that the Indemnifying Party is prejudiced thereby. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, liabilities or claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party Indemnified Party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees and the Issuer agree to indemnify, defend and hold harmless each the Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any the Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an a “Holder Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company and the Issuer shall reimburse, as incurred, the Holder Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company and the Issuer shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon (i) any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and in, any Shelf Registration Statement or any Prospectus or (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating a disposition, pursuant to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concernedby a Holder Indemnified Party during a Suspension Period, to the extent that a prospectus relating provided such Holder Indemnified Party received, prior to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection disposition, a Suspension Notice with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given respect to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderSuspension Period; provided further, however, that this indemnity agreement will be in addition to any liability which the Company and the Issuer may otherwise have to such Holder Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its the Issuer, each of their respective directors, officers, employees, representatives, agents and any person who controls the Company or the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or arises out with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), or is based upon any omission or alleged omission to state (C) a material fact necessary in order to make public sale of Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were mademost recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(i) or Section 2(d)(i)(C), not misleading, provided the Company shall have theretofore provided such Holder with copies of such Prospectus in connection with a timely manner so as to permit such informationdelivery; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company and the Issuer for any legal or other expenses reasonably incurred by the Company and the Issuer or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company and the Issuer or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwiseotherwise unless and to the extent such failure to give notice results in the loss or compromise of any material rights or defenses of the Indemnifying Party. Such The Indemnifying Party shall be entitled to appoint counsel (including local counsel) of the Indemnifying Party’s choice at the Indemnifying Party’s expense to represent the Indemnified Party in any action for which indemnification is sought (in which case the Indemnifying Party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the Indemnifying Party, retained by the Indemnified Party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Party. Notwithstanding the Indemnifying Party’s election to appoint counsel (including local counsel) to represent the Indemnified Party in an action, the Indemnified Party shall have the right to employ its own separate counsel in any such case(including local counsel), but and the fees Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An ) if (i) the use of counsel chosen by the Indemnifying Party shall not be liable for to represent the Indemnified Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any settlement of such Proceeding effected without action include both the written consent of such Indemnifying Party, but if settled with Indemnified Party and the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to the Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by Party; (iii) the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such employed counsel satisfactory to the Indemnified Party in accordance with such request prior to represent the date Indemnified Party within sixty (60) days after notice of the institution of such settlement and action; or (iiiiv) such the Indemnifying Party shall authorize the Indemnified Party shall have given such to employ separate counsel at the expense of the Indemnifying Party at least 30 days’ prior notice of its intention to settleParty. No Indemnifying Party shall, without the prior written consent of any the Indemnified Party, effect any settlement of any pending or threatened Proceeding action in respect of which such any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, Party unless such settlement (i) includes an unconditional release of such Indemnified Party from all liability on any claims that are the subject matter of such Proceeding and action, (ii) does not include a statement as to, or an admission of of, fault, culpability or a failure to act, act by or on behalf of such an Indemnified Party, and (iii) does not include any undertaking or obligation to act or to refrain from acting by the Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Issuer, on the one hand hand, and by the Holders or the Initial Purchasers Purchaser, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Issuer, on the one hand hand, and of the Holders or the Initial Purchasers Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company and the Issuer, on the one hand hand, and of the Holders or any the Initial Purchaser Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company and the Issuer or by the Holders or such the Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Issuer, the Holders and the Initial Purchasers Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the CompanyCompany or the Issuer, or the Company’s or the Issuer’s officers or directors or any person controlling the Company or the Issuer and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (SL Green Operating Partnership, L.P.)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend indemnify and hold harmless each Initial PurchaserHolder and its directors, each Holderofficers, employees, members, representatives and agents and each person, if any, who controls any Initial Purchaser or Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “a "Holder Indemnified Party”"), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) except insofar as any such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information required to be included in any Shelf Registration Statement or the related Prospectus pursuant the Securities Act furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect Company; provided, however, that as to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the this indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder Indemnified Party on account of any loss, claim, damage, liability or action arising from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased sale of the Registrable Securities concerned, sold pursuant to the extent that a prospectus relating Shelf Registration Statement to such Registrable Securities was required to be delivered any person by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact Indemnified Party if (i) that there was not sent Holder Indemnified Party failed to send or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, give a copy of the final prospectus if Prospectus, as the same may be amended or supplemented, to that person within the time required by the Securities Act (other than as a result of a failure by the Company had previously furnished to timely deliver copies thereof of the Prospectus to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Holder Indemnified Party) and (ii) the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such preliminary prospectus was corrected in the Prospectus or a supplement or amendment thereto, as the case may be.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, and its directors, officers, employees, representativesmembers, representatives and agents and any person each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “"Company Indemnified Party”") from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use required to be included in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectusthe related Prospectus pursuant the Securities Act, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; andprovided, subject to the limitation set forth immediately preceding this clausehowever, each that no such Holder shall reimburse, as incurred, the Company be liable for any legal or other expenses reasonably incurred by claims hereunder in excess of the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon from the sale of the Registrable Securities pursuant to the such Shelf Registration Statement giving rise to such indemnification obligationStatement.
(c) If any action, suit or proceeding (each, a “"Proceeding”") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “"Indemnified Party”") shall promptly notify the person against whom such indemnity may be sought (the “"Indemnifying Party”") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that failure to so notify the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may otherwise have to such Indemnified Party or otherwisethan on account of this indemnity agreement. Such Indemnified Party shall have the right to employ its own counsel in any such casecounsel, 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 such Indemnifying Party in connection with and the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon mutually agreed to the written advice of counsel that there may be one or more defenses available to it that are different fromcontrary, additional to or in conflict with those available to such (ii) the Indemnifying Party has failed within a reasonable time after receipt of notice to assume defense of a Proceeding to retain counsel reasonably satisfactory to the Indemnified Party or (iii) the named parties in which case any such Proceeding (including any impleaded parties) include both the Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of and the Indemnified Party, but such the Indemnifying Party may employ proposes to have the same counsel represent it and participate in the defense thereof but Indemnified Party, and representation of both parties by the fees and expenses of such same counsel shall would be at inappropriate due to actual or potential differing interests between them. It is understood that the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not not, in connection with any Proceeding or related Proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate counsel firm (in addition to any one Proceeding or series local counsel) for all Indemnified Parties, and that all such fees and expenses actually incurred shall be promptly reimbursed upon delivery to the Indemnifying Party of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to reasonable documentation therefor setting forth such action)expenses in reasonable detail. An The Indemnifying Party shall not be liable for any settlement of such any Proceeding effected without the its written consent of such Indemnifying Partyconsent, but if settled with such consent or if there be a final judgment for the written consent of such Indemnifying Partyplaintiff, such the Indemnifying Party agrees to indemnify and hold harmless an any Indemnified Party from and against any loss or liability by reason of such settlementsettlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an the Indemnifying Party to reimburse such the Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such the Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such the Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party indemnifying party shall not have reimbursed such the Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ ' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any the Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyparty, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified PartyProceeding.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, liabilities or claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, or the Company’s 's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Interstate Bakeries Corp/De/)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserholder of Warrant Stock registered pursuant to this Agreement with the Commission, each Holderor under any blue sky law or regulation, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any losslosses, damageclaims, expensedamages or liabilities, liabilityjoint or several, claim or any actions in respect thereof (including the reasonable cost of investigation) to which such Indemnified Party holder may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as but only to the extent that such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement preliminary prospectus, registration statement, prospectus or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each such holder for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, damage, expense, liability, claim action or action in respect thereofclaim; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, damageclaim, expense, liability, claim damage or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained inmade in any such document, or omitted from, in reliance upon and in conformity with written information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company by any holder expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partytherein.
(b) Each Holder, severally and not jointly, agrees holder of Common Stock registered pursuant to indemnify, defend this Agreement will indemnify and hold harmless the CompanyCompany against any and all losses, its directorsclaims, officers, employees, representatives, agents and any person who controls damages or liabilities to which the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachmay become subject, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary prospectus, registration statement or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements was made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectussuch document, in the light of the circumstances under which they were made, not misleading, reliance upon and in connection conformity with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have written information furnished to the Company by such holder expressly for use therein, or in a document to be filed with the Commission or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationstate securities commission.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection Promptly after receipt by an indemnified party under subsections (a) or (b) of this Section 616 of notice of the commencement of any action, such person (indemnified party shall, if a claim in respect thereof is to be made against the “Indemnified Party”) shall promptly indemnifying party under either such subsection, notify the person against whom such indemnity may be sought (the “Indemnifying Party”) indemnifying party in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingcommencement thereof; provided, however, that but the omission so to notify such Indemnifying Party the indemnifying party shall not relieve such Indemnifying Party it from any liability which it may have to any indemnified party otherwise than under either of such Indemnified Party or otherwisesubsections. Such Indemnified Party shall have the right to employ its own counsel in In case any such caseaction shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, but the fees and indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After receipt of written notice from the indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such subsections for any legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expenses, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense thereof other than reasonable costs of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as investigation incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without assumption by the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyindemnifying party.
(d) If the indemnification provided for in this Section 6 16 is unavailable or insufficient to hold harmless an Indemnified Party indemnified party under subsections subsection (a) and or (b) of this Section 6 above in respect of any losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders holder or the Initial Purchasers on the other hand holders from this Agreement and from the offering of the Registrable Securities or (ii) if shares of Warrant Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable lawlaw or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other holders in connection with the statements or omissions which resulted in such losses, damagesclaims, expenses, liabilities, claims damages or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders or such Initial Purchaser holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers holders agree that it would not be just and equitable if contribution pursuant to this Section 6 subparagraph (d) were determined by pro rata allocation (even if the holders were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in subsection this subparagraph (d). Except as provided in subparagraph (c) of this Section 16, 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 subparagraph (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required deemed to contribute include any amount legal or other expenses reasonably incurred by such indemnified party in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of connection with investigating or defending any damages which it has otherwise been required to pay by reason of such untrue action or alleged untrue statement or omission or alleged omissionclaim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any provision in this subparagraph (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 Holders’ respective obligations to contribute pursuant to of the Company under this Section 6 are several 16 shall be in proportion addition to any liability which the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which Company may otherwise be available to any indemnified party have at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Warrant Purchase Agreement (Parallel Petroleum Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, Holder and each Holder, each person, if any, person who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “a "Holder Indemnified Party”"), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) except insofar as any such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect therein; provided, however, that as to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the this indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder Indemnified Party on account of any loss, claim, damage, liability or action arising from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased sale of the Registrable Securities concerned, sold pursuant to the extent that a prospectus relating Shelf Registration Statement to such Registrable Securities was required to be delivered any person by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact Indemnified Party if (i) that there was not sent Holder Indemnified Party failed to send or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, give a copy of the final prospectus if Prospectus, as the same may be amended or supplemented, to that person within the time required by the Securities Act (other than as a result of a failure by the Company had previously furnished to deliver copies thereof of the Prospectus to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Holder Indemnified Party) and (ii) the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such preliminary prospectus was corrected in the Prospectus or a supplement or amendment thereto, as the case may be.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “"Company Indemnified Party”") from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “"Proceeding”") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “"Indemnified Party”") shall promptly notify the person against whom such indemnity may be sought (the “"Indemnifying Party”") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 75 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ ' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, liabilities or claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, or the Company’s 's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Cooper Companies Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, Holder and each Holder, each person, if any, person who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Holder Indemnified Party”), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) except insofar as any such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, therein; provided that the foregoing indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom Initial Purchaser who fails to deliver a Prospectus (as then amended or supplemented and provided by the Company to the Initial Purchasers in the requisite quantity and on a timely basis to permit proper delivery on or prior to the Closing Date) to the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liabilityliability or claim caused by an untrue statement or alleged untrue statement of a material fact contained in the Preliminary Prospectus or caused by any omission or alleged omission to state therein a material fact necessary to make the statement therein, claim or action of such Holder results from in the fact that there was not sent or given to such person, at or prior to the written confirmation light of the sale of circumstances under which they were made, not misleading, if such Registrable Securities to such person, a copy of Prospectus would have cured the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partymaterial misstatement or omission or alleged material misstatement or omission.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party except to the extent that it has been prejudiced in any material respect by such failure or relieve such Indemnifying Party from any liability it may have under this Section 6 otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, liabilities or claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Bankunited Financial Corp)
Indemnification; Contribution. (a) The Company agrees to indemnifyshall indemnify each of the Selling Stockholders, defend and hold harmless each Initial Purchaser, each Holder, each person, person (if any, ) who controls any Initial Purchaser or Holder such Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 of 1933, as amended (the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”"Act"), from against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of counsel incurred in defending against any losssuch claim, damage, expense, damage or liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in any Shelf the registration statement filed or to be filed with the Securities and Exchange Commission (the "Commission"), in connection with the Public Offering, as the same may be amended or supplemented from time to time (the "Registration Statement or Prospectus, including any document incorporated by reference therein, Statement") or in any amendment or supplement thereto or in any preliminary prospectusprospectus filed with, or arises out of delivered to, the Commission in connection with the Public Offering, or is based upon caused by any omission or alleged omission to state therefrom of a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectustherein, in the light of the circumstances under in which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such losslosses, damageclaims, expensedamages, liability, claim or action arises out of or is based upon any liabilities are caused by an untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or any material fact omitted from, and in conformity with information relating to a Selling Stockholder furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly by such Selling Stockholder for use therein and (ii) with respect to in the Registration Statement or any untrue statement amendment or omission supplement thereto, or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such lossesprospectus, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if then the Company had previously furnished copies thereof shall have no obligation hereunder to indemnify the Selling Stockholder furnishing such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyinformation.
(b) Each HolderSelling Stockholder shall indemnify each of the Company and the other Selling Stockholders, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any each person (if any) who controls the Company or such other Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of the Exchange Act (each, a “Company Indemnified Party”) from and counsel incurred in defending against any losssuch claim, damage, expense, damage or liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or in any prospectus filed with, or delivered to, the Commission in connection with the Public Offering, or caused by any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, but only with respect to information relating to such Selling Stockholder furnished in writing by or on behalf of such Holder to the Company Selling Stockholder expressly for use in any Shelf the Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person prospectus, PROVIDED, HOWEVER, no Selling Stockholder shall be liable in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to an amount that exceeds the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount aggregate public offering price of the proceeds received Stockholder Shares sold by such Holder upon the sale Selling Stockholder, net of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationunderwriting discount.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which The indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault agreements of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions Selling Stockholders contained in this Section 6 2 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder indemnified party and shall survive delivery of shares of Common Stock pursuant to the Public Offering.
(d) In order to provide for just and equitable contribution in circumstances in which indemnification provided for in paragraphs (a) or Initial Purchaser or any person controlling any Holder or Initial Purchaser(of this Section 2 is unavailable, or the Company, or the Company’s officers or directors or any person controlling the Company and each of the Selling Stockholders shall contribute to the aggregate losses, claims, damages, liabilities and expenses (including all reasonable fees and disbursements of counsel incurred in defending against any claim, damage, or liability), to which one or more of the Selling Stockholders may be subject in such proportion as is appropriate to reflect the relevant fault of the Company and the respective Selling Stockholders in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities and expenses as well as any other relevant equitable considerations; PROVIDED, HOWEVER, that:
(i) in any case where any Selling Stockholder is seeking contribution hereunder such Selling Stockholder shall be entitled to contribution from the remaining Selling Stockholders pursuant to this Agreement only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any case be required to contribute or make any payments under this paragraph (d) which in the aggregate exceed his pro rata share of such losses, claims, damages, liabilities and expenses determined in accordance with the total number of Company Shares and Stockholder Shares sold by each respective party hereto PROVIDED, HOWEVER, that no Selling Stockholder shall be liable to contribute an amount that exceeds the aggregate public offering price of the Stockholder Shares sold by the Selling Stockholder, net of the underwriting discount; and
(iii) neither the sale Company nor any Selling Stockholder will be required to make any contribution to another Selling Stockholder with respect to matters for which the other Selling Stockholder would not otherwise be entitled to be indemnified under paragraph (a) of any Registrable Security by any Holderthis Section 2 had such indemnification been available.
Appears in 1 contract
Sources: Selling Stockholder Agreement (Brooks Automation Inc)
Indemnification; Contribution. (a) The Company agrees and each of the Guarantors agree, jointly and severally, to indemnify, defend and hold harmless each Initial Purchaser, Holder and each Holder, each person, if any, person who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”a "HOLDER INDEMNIFIED PARTY"), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon caused by any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) except insofar as any such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partytherein.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the CompanyCompany and each Guarantor, its directors, officers, employees, representatives, agents and each of their respective directors and officers and any person who controls the Company or any such Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”"COMPANY INDEMNIFIED PARTY") from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon caused by any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”"PROCEEDING") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”"INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”"INDEMNIFYING PARTY") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent that it has been materially prejudiced by such failure. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ ' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, liabilities or claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. The relative benefit received by the Company and the Guarantors shall be deemed to be equal to the total net proceeds from the initial placement pursuant to the Purchase Agreement (before deducting expenses) of the Registrable Securities to which such losses, claims, damages or liabilities relate. The relative benefit received by any Holder shall be deemed to be equal to the value of receiving registration rights under this Agreement for the Registrable Securities. The relative fault of the Company and the Guarantors on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or any Guarantor or by the Holders or such Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Guarantors and the Initial Purchasers Holders agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, or any Guarantor, the Company’s officers or directors of the Company or any Guarantor or any person controlling the Company or any Guarantor and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Genesis Healthcare Corp)
Indemnification; Contribution. (a) The Company agrees and the Guarantor jointly and severally agree to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”)Person, from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party indemnified party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, as incurred, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Issuer Free Writing Prospectus or in any amendment or supplement thereto, in the light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties indemnified parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any the Initial Purchaser or a Holder to the Company expressly for use therein and (ii) in, any Shelf Registration Statement or any Prospectus or any Issuer Free Writing Prospectus; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (aSection 6(a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expenseexpenses, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if provided the Company had previously furnished sufficient copies thereof of such final prospectus to such HolderHolder in a timely manner as to reasonably permit such Holder to send or give a copy of such final prospectus to such person at or prior to the written confirmation of such sale; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyindemnified party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the CompanyCompany and the Guarantor, its and their respective directors, officers, employees, representatives, agents employees and any person who controls the Company and the Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party indemnified party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus or Issuer Free Writing Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in any amendment Prospectus or supplement thereto Issuer Free Writing Prospectus or necessary to make the statements therein such Holder Information not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company Company, as applicable, for any legal or other expenses reasonably incurred by the Company Company, the Guarantor or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company Company, the Guarantor or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) indemnified party shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party indemnified party or otherwise. Such Indemnified Party 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 indemnified party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party indemnified party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Partyindemnified party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties indemnified parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party indemnified party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party indemnified party shall have requested an Indemnifying Party to reimburse such Indemnified Party indemnified party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party indemnified party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party indemnified party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Partyindemnified party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party indemnified party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyindemnified party, unless such settlement includes an unconditional release of such Indemnified Party indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Partyindemnified party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party indemnified party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such indemnified party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchaser, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or any Initial Purchaser or any person controlling any Holder or any Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (KKR Financial Holdings LLC)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend indemnify and hold harmless each Initial Purchaser, Underwriter and each Holder, each person, if any, person who controls any Initial Purchaser or Holder Underwriter within the meaning of Section 15 meanings of the Securities 1933 Act against any and all losses, claims, damages or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officersliabilities, directorsjoint or several, partners, employees, representatives and agents of the Initial Purchasers, the Holders to which they or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party them may incur or become subject to under the Securities 1933 Act, the Exchange 1934 Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf the Registration Statement as originally filed or in any amendment thereof, or in any preliminary prospectus or the Prospectus, including any document incorporated by reference therein, or in any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission and agrees to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimbursereimburse each such indemnified party, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, expense, liability, claim liability or action in respect thereofaction; provided, however, that (i) insofar as the Company will not be liable in any such case to the extent that any such loss, damageclaim, expense, liability, claim damage or action liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through you specifically for use in connection with the preparation thereof, and (ii) such indemnity with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) from whom the person assessing any such loss, claim, damage or liability purchased the Securities which are the subject thereof if such person did not receive a copy of the Prospectus (or the Prospectus as amended or supplemented) at or prior to the confirmation of the sale of such Securities to such person in any case where such delivery is required by the 1933 Act and the untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any such preliminary prospectus relating to a Shelf Registration Statement, was corrected in the indemnity agreement contained in this subsection Prospectus (a) shall not inure to or the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims Prospectus as amended or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this supplemented). This indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyhave.
(b) Each Holder, Underwriter severally and not jointly, agrees to indemnify, defend indemnify and hold harmless the Company, each of its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.officers
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnifyshall indemnify each of the Selling Stockholders, defend and hold harmless each Initial Purchaser, each Holder, each person, person (if any, ) who controls any Initial Purchaser or Holder such Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 of 1933, as amended (the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”"Act"), from against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of counsel incurred in defending against any losssuch claim, damage, expense, damage or liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in any Shelf the registration statement filed or to be filed with the Securities and Exchange Commission (the "Commission"), in connection with the Public Offering, as the same may be amended or supplemented from time to time (the "Registration Statement or Prospectus, including any document incorporated by reference therein, Statement") or in any amendment or supplement thereto or in any preliminary prospectusprospectus filed with, or arises out of delivered to, the Commission in connection with the Public Offering, or is based upon caused by any omission or alleged omission to state therefrom of a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectustherein, in the light of the circumstances under in which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such losslosses, damageclaims, expense-------- ------- damages, liability, claim or action arises out of or is based upon any liabilities are caused by an untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or any material fact omitted from, and in conformity with information relating to a Selling Stockholder furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly by such Selling Stockholder for use therein and (ii) with respect to in the Registration Statement or any untrue statement amendment or omission supplement thereto, or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such lossesprospectus, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if then the Company had previously furnished copies thereof shall have no obligation hereunder to indemnify the Selling Stockholder furnishing such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyinformation.
(b) Each HolderSelling Stockholder shall indemnify each of the Company and the other Selling Stockholders, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any each person (if any) who controls the Company or such other Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of the Exchange Act (each, a “Company Indemnified Party”) from and counsel incurred in defending against any losssuch claim, damage, expense, damage or liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or in any prospectus filed with, or delivered to, the Commission in connection with the Public Offering, or caused by any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, but only with respect to information relating to such Selling Stockholder furnished in writing by or on behalf of such Holder to the Company Selling Stockholder expressly for use in any Shelf the Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person prospectus, provided, however, no -------- ------- Selling Stockholder shall be liable in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to an amount that exceeds the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount aggregate initial public offering price of the proceeds received Stockholder Shares sold by such Holder upon the sale Selling Stockholder, net of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationunderwriting discount.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which The indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault agreements of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions Selling Stockholders contained in this Section 6 2 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaserindemnified party and shall survive delivery of shares of Common Stock pursuant to the Public Offering.
(d) In order to provide for just and equitable contribution in circumstances in which indemnification provided for in paragraph (a) of this Section 2 is unavailable, or the Company, or the Company’s officers or directors or any person controlling the Company and each of the Selling Stockholders shall contribute to the aggregate losses, claims, damages, liabilities and expenses (including all reasonable fees and disbursements of counsel incurred in defending against any claim, damage, or liability), to which one or more of the Selling Stockholders may be subject in such proportion as is appropriate to reflect the relevant fault of the Company and the respective Selling Stockholders in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities and expenses as well as any other relevant equitable considerations; provided, however, that: -------- -------
(i) in any case where any Selling Stockholder is seeking contribution hereunder such Selling Stockholder shall be entitled to contribution from the remaining Selling Stockholders pursuant to this Agreement only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any case be required to contribute or make any payments under this paragraph (d) which in the aggregate exceed his pro rata share of such losses, claims, damages, liabilities and expenses determined in accordance with the total number of Company Shares and Stockholder Shares sold by each respective party hereto provided, however, that, except as set forth in subparagraph (iii) of this -------- ------- paragraph (d), no Selling Stockholder shall be liable to contribute an amount that exceeds the sale aggregate public offering price of the Stockholder Shares sold by the Selling Stockholder, net of the underwriting discount;
(iii) in the event the Company or any Registrable Security Selling Stockholder defaults on its obligation to make any contribution pursuant to this paragraph (d), the amount by which each of the remaining parties is obligated to contribute hereunder shall be increased in accordance with the relation of the number of shares of Common Stock being sold by each such remaining party to the aggregate number of shares of Common Stock being sold by all such remaining parties;
(iv) neither the Company nor any HolderSelling Stockholder will be required to make any contribution to another Selling Stockholder with respect to matters for which the other Selling Stockholder would not otherwise be entitled to be indemnified under paragraph (a) of this Section 2 had such indemnification been available; and
(v) for purposes of this paragraph (d), each person, if any, who controls a Selling Stockholder within the meaning of Section 15 of the Act, and each director, officer or partner (if any) of such Selling Stockholder, shall have the same rights to contribution under this Agreement as such Selling Stockholder.
Appears in 1 contract
Sources: Selling Stockholder Agreement (Brooks Automation Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserholder and each affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, each Holder, each person, if any, who controls or under any Initial Purchaser Blue Sky Law or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and regulation against any losslosses, damageclaims, expensedamages, liabilityor liabilities, claim joint or any actions in respect thereof (including the reasonable cost of investigation) several, to which such Indemnified Party holder may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectuspreliminary prospectus, including any document incorporated by reference thereinregistration statement, prospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each such holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, damage, expense, liability, action or claim regardless of the negligence of any such holder or action in respect thereofaffiliate; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense, liability, claim or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained registration statement or prospectus, or any such amendment or supplement thereto, in this subsection (a) shall not inure reliance upon and in conformity with written information furnished to the benefit of any Holder from whom the person asserting Company by any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyholder expressly for use therein.
(b) Each Holder, severally and not jointly, agrees holder of Common Stock registered pursuant to indemnify, defend this Agreement will indemnify and hold harmless the CompanyCompany against any losses, its directorsclaims, officersdamages, employees, representatives, agents and any person who controls or liabilities to which the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachmay become subject, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary prospectus, registration statement or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or was made in any preliminary prospectus, in the light of the circumstances under which they were maderegistration statement or prospectus, not misleadingor any amendment or supplement thereto, in connection reliance upon and in conformity with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have written information furnished to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationholder expressly for use therein.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aPromptly after receipt by an indemnified party under Sections 8(a) or (b) above of this Section 6the commencement of any action, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentenceindemnified party shall, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding a claim in respect of which such Indemnified Party thereof is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.be
(d) If the indemnification provided for in this Section 6 8 is unavailable or insufficient to hold harmless an Indemnified Party indemnified party under subsections (aSection 8(a) and (bor 8(b) of this Section 6 in respect of any losses, claims, damages, expenses, liabilities, claims or actions liabilities (or action in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders holder or the Initial Purchasers on the other hand holders from this Agreement and from the offering of the Registrable Securities or (ii) if shares of Common Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other holders in connection with the statements statement or omissions which that resulted in such losses, claims, damages, expenses, liabilities, claims or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders or such Initial Purchaser holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers holders agree that it would not be just and equitable if contribution pursuant to this Section 6 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 of allocation which that does not take into account of the equitable considerations referred to above in this subsection (de). 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) above. Notwithstanding the provisions of referred to above in this Section 6, no Holder 8(d) shall be required deemed to contribute include any amount legal or other expenses reasonably incurred by such indemnified party in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of connection with investigation or defending any damages which it has otherwise been required to pay by reason of such untrue action or alleged untrue statement or omission or alleged omissionclaim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for Notwithstanding any provision in this Section 6 are not exclusive 8(d) to the contrary, no holder shall be liable for any amount, in the
(e) The obligations of the Company under this Section 8 shall be in addition to any liability that the Company may otherwise have and shall not limit extend, upon the same terms and conditions, to each person, if any, who controls any rights or remedies which 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 liability that such holders may otherwise be available have and shall extend, upon the same terms and conditions to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreementeach person, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaserif any, or the Company, or the Company’s officers or directors or any person controlling who controls the Company and (iii) within the sale meaning of any Registrable Security by any Holderthe Act.
Appears in 1 contract
Sources: Warrant Agreement (Grand Adventures Tour & Travel Publishing Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, Holder and each Holder, each person, if any, person who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Holder Indemnified Party”), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, except insofar as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liabilityliability or claim arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, claim or action omitted from, and in respect thereof; conformity with information furnished in writing by or on behalf of any Holder to the Company expressly for use therein, provided, however, that (ithe Company shall not be required to provide any indemnify pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with written information pertaining to an Initial Purchaser or Holder furnished in writing by or on behalf of any such Initial Purchaser or Holder to the Company expressly for use therein in, any Shelf Registration Statement or any Prospectus, including information provided by such Holder in a Notice and (ii) Questionnaire; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the such Registrable Securities concernedSecurities, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition not apply to any loss, damage, expense, liability which or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder to whom the Company may otherwise have to such Indemnified Partytheretofore provided a Suspension Notice in accordance with Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.or
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or Holder to the Company expressly for use therein therein, including without limitation all information, to the extent provided by such Holder, regarding such Holder and its affiliates included in a Notice and Questionnaire provided by such Holder to the Company, and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, including without limitation all information, to the extent provided by such Holder, regarding such Holder and its affiliates included in a Notice and Questionnaire provided by such Holder to the Company, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwiseotherwise unless materially prejudiced thereby. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days a reasonable amount of time following the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 forty-five (45) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any the Initial Purchaser Purchasers on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Biomarin Pharmaceutical Inc)
Indemnification; Contribution. (a) The Company agrees to indemnifyshall indemnify each of the Selling Stockholders, defend and hold harmless each Initial Purchaser, each Holder, each person, person (if any, ) who controls any Initial Purchaser or Holder such Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 of 1933, as amended (the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”"Act"), from against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of counsel incurred in defending against any losssuch claim, damage, expense, damage or liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in any Shelf the registration statement filed or to be filed with the Securities and Exchange Commission (the "Commission"), in connection with the Public Offering, as the same may be amended or supplemented from time to time (the "Registration Statement or Prospectus, including any document incorporated by reference therein, Statement") or in any amendment or supplement thereto or in any preliminary prospectusprospectus filed with, or arises out of delivered to, the Commission in connection with the Public Offering, or is based upon caused by any omission or alleged omission to state therefrom of a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectustherein, in the light of the circumstances under in which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) -------- ------- insofar as any such losslosses, damageclaims, expensedamages, liability, claim or action arises out of or is based upon any liabilities are caused by an untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or any material fact omitted from, and in conformity with information relating to a Selling Stockholder furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly by such Selling Stockholder, in his capacity as Selling Stockholder, for use therein and (ii) with respect in the Registration Statement or any amendment or supplement thereto, or any such prospectus, then the Company shall have no obligation hereunder to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating indemnify the Selling Stockholder furnishing such information. For purposes hereof, such information shall be deemed to a Shelf Registration Statement, be the indemnity agreement contained in this subsection (a) shall not inure information provided to the benefit of any Holder from whom the person asserting any Company by such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating Selling Stockholder pursuant to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase Selling Stockholder's Questionnaire for Directors, Officers and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified PartyCertain other Persons.
(b) Each HolderSelling Stockholder shall indemnify each of the Company and the other Selling Stockholders, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any each person (if any) who controls the Company or such other Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of the Exchange Act (each, a “Company Indemnified Party”) from and counsel incurred in defending against any losssuch claim, damage, expense, damage or liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or in any prospectus filed with, or delivered to, the Commission in connection with the Public Offering, or caused by any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, but only with respect to information relating to such Selling Stockholder furnished in writing by or on behalf of such Holder to the Company Selling Stockholder expressly for use in any Shelf the Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person prospectus, provided, however, no -------- ------- Selling Stockholder shall be liable in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to an amount that exceeds the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount aggregate initial public offering price of the proceeds received Stockholder Shares sold by such Holder upon the sale Selling Stockholder, net of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationunderwriting discount.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which The indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault agreements of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions Selling Stockholders contained in this Section 6 2 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaserindemnified party and shall survive delivery of shares of Common Stock pursuant to the Public Offering.
(d) In order to provide for just and equitable contribution in circumstances in which indemnification provided for in paragraph (a) of this Section 2 is unavailable, or the Company, or the Company’s officers or directors or any person controlling the Company and each of the Selling Stockholders shall contribute to the aggregate losses, claims, damages, liabilities and expenses (including all reasonable fees and disbursements of counsel incurred in defending against any claim, damage, or liability), to which one or more of the Selling Stockholders may be subject in such proportion as is appropriate to reflect the relevant fault of the Company and the respective Selling Stockholders in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities and expenses as well as any other relevant equitable considerations; provided, however, that: -----------------
(i) in any case where any Selling Stockholder is seeking contribution hereunder such Selling Stockholder shall be entitled to contribution from the remaining Selling Stockholders pursuant to this Agreement only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any case be required to contribute or make any payments under this paragraph (d) which in the aggregate exceed his pro rata share of such losses, claims, damages, liabilities and expenses determined in accordance with the total number of Company Shares and Stockholder Shares sold by each respective party hereto provided, however, that, -------- ------- except as set forth in subparagraph (iii) of this paragraph (d), no Selling Stockholder shall be liable to contribute an amount that exceeds the sale aggregate public offering price of the Stockholder Shares sold by the Selling Stockholder, net of the underwriting discount;
(iii) in the event the Company or any Registrable Security Selling Stockholder defaults on its obligation to make any contribution pursuant to this paragraph (d), the amount by which each of the remaining parties is obligated to contribute hereunder shall be increased in accordance with the relation of the number of shares of Common Stock being sold by each such remaining party to the aggregate number of shares of Common Stock being sold by all such remaining parties;
(iv) neither the Company nor any HolderSelling Stockholder will be required to make any contribution to another Selling Stockholder with respect to matters for which the other Selling Stockholder would not otherwise be entitled to be indemnified under paragraph (a) of this Section 2 had such indemnification been available; and
(v) for purposes of this paragraph (d), each person, if any, who controls a Selling Stockholder within the meaning of Section 15 of the Act, and each director, officer or partner (if any) of such Selling Stockholder, shall have the same rights to contribution under this Agreement as such Selling Stockholder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a "Controlling Person"), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives partners and agents employees of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”)Person, from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party (as defined below) may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnity pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of Statement or any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this Prospectus. This indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its any Controlling Person of the Company and their respective directors, officers, employees, representatives, agents officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) employees from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the "Holder Information") furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “"Proceeding”") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “"Indemnified Party”") shall promptly notify the person against whom such indemnity may be sought (the “"Indemnifying Party”") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days a reasonable period of the receipt of notice thereof time or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s 's officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify, defend indemnify ------------------------------ and hold harmless each Initial PurchaserPerson who participates as an underwriter (any such Person being an "Underwriter"), each HolderStockholder and their respective partners, ----------- directors, officers and employees and each personPerson, if any, who controls any Initial Purchaser Stockholder or Holder any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any lossand all losses, damageliabilities, expenseclaims, liabilitydamages, claim or any actions in respect thereof (including the judgments and reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises expenses arising out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement (or Prospectusany amendment thereto) pursuant to which Registrable Securities were registered under the Securities Act, including any document all documents incorporated therein by reference thereinreference, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any the omission or alleged omission to state therefrom of a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleadingmisleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or arises out of or is based upon any the omission or alleged omission to state therefrom of a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectustherein, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition does not apply to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder-------- ------- Stockholder or any Underwriter or their respective partners, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officersofficers and employees and each Person, employeesif any, representatives, agents and any person who controls the Company any Stockholder or any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against with respect to any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such lossclaim, damage, expense, liability, claim judgment or action arises expense to the extent arising out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Company by such Stockholder or such Underwriter expressly for use in a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto) or (B) if such untrue statement or omission or alleged omission. No person guilty untrue statement or omission was corrected in an amended or supplemented Registration Statement or Prospectus and the Company had furnished copies thereof to the selling Underwriter or the selling Stockholder prior to the relevant date of fraudulent misrepresentation sale by such Underwriter or such Stockholder to the Person asserting such loss, liability, claim, damage, judgment or expense (within provided, in the meaning case of Section 11(f) of an Underwritten Offering, the Securities Act-------- limitation in this clause (B) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant apply to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equityParticipating Stockholder).
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Hilfiger Tommy Corp)
Indemnification; Contribution. (a) The Company and each Guarantor agrees to indemnify, defend and hold harmless each Initial Purchaser, each Notice Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Notice Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Notice Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company and the Guarantors shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of Statement or any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderProspectus; provided further, however, that this indemnity agreement will be in addition to any liability which the Company and the Guarantors may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, and each Guarantor, its directors, officers, employees, representatives, agents employees and any person who controls the Company or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company and each Guarantor or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party Party, except to the extent that the indemnifying party has been prejudiced in any material respect by such failure through the forfeiture of substantive rights or otherwisedefenses. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing all the Indemnified Parties who are parties to such actionParties). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, which consent shall not be unreasonably withheld or delayed, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (bor Section 6(b) of this Section 6 or insufficient to hold such Indemnified Party harmless in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or Guarantors or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, and each Guarantor, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the CompanyCompany or the Guarantors, or the Company’s or any of the Guarantors’ officers or directors or any person controlling the Company or any Guarantor and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserholder and each affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, each Holder, each person, if any, who controls or under any Initial Purchaser Blue Sky Law or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and regulation against any losslosses, damageclaims, expensedamages, liabilityor liabilities, claim joint or any actions in respect thereof (including the reasonable cost of investigation) several, to which such Indemnified Party holder may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectuspreliminary prospectus, including any document incorporated by reference thereinregistration statement, prospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each such holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, damage, expense, liability, action or claim regardless of the negligence of any such holder or action in respect thereofaffiliate; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense, liability, claim or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained registration statement or prospectus, or any such amendment or supplement thereto, in this subsection (a) shall not inure reliance upon and in conformity with written information furnished to the benefit of any Holder from whom the person asserting Company by any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyholder expressly for use therein.
(b) Each Holder, severally and not jointly, agrees holder of Common Stock registered pursuant to indemnify, defend this Agreement will indemnify and hold harmless the CompanyCompany against any losses, its directorsclaims, officersdamages, employees, representatives, agents and any person who controls or liabilities to which the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachmay become subject, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary prospectus, registration statement or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or was made in any preliminary prospectus, in the light of the circumstances under which they were maderegistration statement or prospectus, not misleadingor any amendment or supplement thereto, in connection reliance upon and in conformity with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have written information furnished to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationholder expressly for use therein.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aPromptly after receipt by an indemnified party under Sections 8(a) or (b) above of this Section 6the commencement of any action, such person (indemnified party shall, if a claim in respect thereof is to be made against the “Indemnified Party”) shall promptly indemnifying party under either such subsection, notify the person against whom such indemnity may be sought (the “Indemnifying Party”) indemnifying party in writing of the institution commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability that it may otherwise have to any indemnified party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of such Proceeding and the Indemnifying Party commencement thereof the indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After notice from the indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from subsections for any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expense, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense thereof other than reasonable costs of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as investigation incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without assumption by the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyindemnifying party, unless such settlement includes an unconditional release expenses have been specifically authorized in writing by the indemnifying party, 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 Indemnified Party from all liability on claims that are indemnified party and the subject matter indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them, in each of such Proceeding and does not include an admission which cases the fees of fault, culpability or a failure to act, counsel for the indemnified party will be paid by or on behalf of such Indemnified Partythe indemnifying party.
(d) If the indemnification provided for in this Section 6 8 is unavailable or insufficient to hold harmless an Indemnified Party indemnified party under subsections (aSection 8(a) and (bor 8(b) of this Section 6 in respect of any losses, claims, damages, expenses, liabilities, claims or actions liabilities (or action in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders holder or the Initial Purchasers on the other hand holders from this Agreement and from the offering of the Registrable Securities or (ii) if shares of Common Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other holders in connection with the statements statement or omissions which that resulted in such losses, claims, damages, expenses, liabilities, claims or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders or such Initial Purchaser holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers holders agree that it would not be just and equitable if contribution pursuant to this Section 6 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 of allocation which that does not take into account of the equitable considerations referred to above in this subsection (de). 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) above. Notwithstanding the provisions of referred to above in this Section 6, no Holder 8(d) shall be required deemed to contribute include any amount legal or other expenses reasonably incurred by such indemnified party in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of connection with investigation or defending any damages which it has otherwise been required to pay by reason of such untrue action or alleged untrue statement or omission or alleged omissionclaim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for Notwithstanding any provision in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.Section
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, Holder and each person, if any, who controls any Initial Purchaser or Holder (a "Controlling Person") within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “"Indemnified Party”"), from and against any loss, damage, expense, liability, claim or any actions action in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder or related Controlling Person (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser such Holder or Holder related Controlling Person to the Company expressly for use therein and in connection with any Shelf Registration Statement or Prospectus, (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus final Prospectus relating to such Registrable Securities was required to be not delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such personHolder, at or prior to the written confirmation of the sale of such Registrable Securities Securities, to the person asserting the claim from which such personloss, damage, expense, liability, claim or action arises, a copy of the final prospectus Prospectus if the Company had previously furnished copies thereof to such Holder; provided furtherHolder and the final Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission or (iii) if such untrue statement or alleged untrue statement, howeveromission or alleged omission is corrected in an amendment or supplement to the final Prospectus and having been previously furnished by or on behalf of the Company with copies of the final Prospectus as so amended or supplemented, that this such Holder thereafter fails to deliver such Prospectus as so amended or supplemented, at or prior to the written confirmation of the sale of Registrable Securities to the person asserting the claim from which such loss, damage, expense, liability, claim or action arises. This indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyany Holder or any of its Controlling Persons.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “"Company Indemnified Party”") from and against any loss, damage, expense, liability, claim or any actions action in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling other person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling personsCompany Indemnified Party. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “"Proceeding”") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “"Indemnified Party”") shall promptly notify the person against whom such indemnity may be sought (the “"Indemnifying Party”") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwiseunder this Section 6 except to the extent it is materially prejudiced thereby. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ forty-five (45) days prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, Company or the Company’s officers or directors 's directors, officers, employees, representatives, agents or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an a “Holder Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of Statement or any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderProspectus; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Holder Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, or arises out (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), or is based upon any omission or alleged omission to state (C) a material fact necessary in order to make public sale of Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were mademost recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(i) or Section 2(d)(i)(C), not misleading, provided the Company shall have theretofore provided such Holder with copies of such Prospectus in connection with a timely manner so as to permit such informationdelivery; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”)Person, from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party indemnified party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, as incurred, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Issuer Free Writing Prospectus or in any amendment or supplement thereto, in the light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties indemnified parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any the Initial Purchaser Purchasers or a Holder to the Company expressly for use therein and (ii) in, any Shelf Registration Statement or any Prospectus or any Issuer Free Writing Prospectus; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (aSection 6(a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expenseexpenses, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if provided the Company had previously furnished sufficient copies thereof of such final prospectus to such HolderHolder in a timely manner as to reasonably permit such Holder to send or give a copy of such final prospectus to such person at or prior to the written confirmation of such sale; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyindemnified party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, Company and its directors, officers, employees, representatives, agents employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party indemnified party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus or Issuer Free Writing Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in any amendment Prospectus or supplement thereto Issuer Free Writing Prospectus or necessary to make the statements therein such Holder Information not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company Company, as applicable, for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) indemnified party shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party indemnified party or otherwise. Such Indemnified Party 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 indemnified party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party indemnified party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Partyindemnified party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties indemnified parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party indemnified party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party indemnified party shall have requested an Indemnifying Party to reimburse such Indemnified Party indemnified party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party indemnified party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party indemnified party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Partyindemnified party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party indemnified party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyindemnified party, unless such settlement includes an unconditional release of such Indemnified Party indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Partyindemnified party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party indemnified party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such indemnified party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or any Initial Purchaser or any person controlling any Holder or any Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (United Dominion Realty Trust Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend Amicus shall indemnify and hold harmless each Initial PurchaserHolder (including the employees, agents, representatives, officers and directors of GSK and its Affiliates) (each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling PersonGSK Indemnitee”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arising out of or is based upon any untrue statement untrue, or alleged untrue allegedly untrue, statement of a material fact contained in any Shelf Registration Statement Statement, prospectus or Prospectus, including preliminary prospectus or notification or offering circular prepared by Amicus in connection with the registration and/or offering of the Registrable Securities (as amended or supplemented if Amicus shall have furnished any document incorporated by reference therein, amendments or in any amendment supplements thereto) or supplement thereto or in any preliminary prospectus, or arises arising out of or is based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or arises contained in any information concerning such Holder furnished in writing to Amicus by such Holder expressly for use in such document.
(b) Each Holder shall indemnify and hold harmless Amicus, and its respective directors, officers, employees and each Person who controls Amicus (within the meaning of the Securities Act and the Exchange Act) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) arising out of or is based upon any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus or notification or offering circular prepared by Amicus in connection with the registration and/or offering of the Registrable Securities (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, if such statement or arises out of or is based omission was made in reliance upon and in conformity with any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which information concerning such Holder may otherwise have furnished in writing to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received Amicus by such Holder upon specifically for use in the sale preparation of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationdocument.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant Each Person entitled to either subsection (a) or (b) of this Section 6, such person indemnification hereunder (the “Indemnified Party”) shall promptly notify agrees to give prompt written notice to the person against whom such indemnity may be sought indemnifying party (the “Indemnifying Party”) after the receipt by the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing of for which the institution of such Proceeding Indemnified Party intends ****** - Material has been omitted and filed separately with the Indemnifying Party shall assume the defense of such ProceedingCommission. to claim indemnification or contribution pursuant to this Agreement; provided, however, that the omission failure to so notify such the Indemnifying Party shall not relieve such the Indemnifying Party from of any liability which that it may have to the Indemnified Party hereunder unless, and only to the extent that, such failure results in the Indemnifying Party’s forfeiture of substantive rights or defenses. If notice of commencement of any such action is given to the Indemnifying Party as above provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may wish, jointly with any other Indemnifying Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party or otherwiseParty. Such The Indemnified Party shall have the right to employ its own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel (other than reasonable costs of investigation) shall be at paid by the expense Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory to the Indemnified Party in its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party unless and the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with by the defense same counsel would be inappropriate under applicable standards of such Proceeding professional conduct or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that (y) there may be one or more legal defenses available to it that which are different from, from or additional to or in conflict with those available to the Indemnifying Party. In either of such Indemnifying Party (in which case such cases, the Indemnifying Party shall not have the right to direct that portion of assume the defense of such Proceeding action on behalf of the such Indemnified Party, but such . No Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected entered into without its written consent if (i) such settlement is entered into more other than 60 Business Days after receipt by such in the case where the Indemnifying Party of the aforesaid requestis unconditionally released from liability and its rights are not adversely effected), (ii) such Indemnifying Party which consent shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partybe unreasonably withheld.
(d) If the indemnification provided for in this Section 6 7.5 from the Indemnifying Party pursuant to applicable law is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 hereunder in respect of any losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses referred to therein, then each applicable the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand Indemnifying Party and of the Holders or the Initial Purchasers on the other Indemnified Party in connection with the statements or omissions actions which resulted in such losses, claims, damages, liabilities or expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault faults of the Company on the one hand such Indemnifying Party and of the Holders or any Initial Purchaser on the other Indemnified Party shall be determined by reference to, among other things, whether the any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by the Company by, such Indemnifying Party or by the Holders or such Initial Purchaser Indemnified Party, and the parties’ relative intent, knowledgeKnowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The amount paid or payable by a party as a result of the losses, claims, damages, expenses, liabilities, claims liabilities and actions expenses referred to above shall be deemed to include include, subject to the limitations set forth in Sections 7.5(a), (b) and (c), any reasonable legal or other fees fees, charges or expenses reasonably incurred by such party in connection with investigating any investigation or defending any Proceeding.
(e) proceeding. The Company, the Holders and the Initial Purchasers parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6 7.5(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentationPerson. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to ****** - Material has been omitted and filed separately with the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equityCommission.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnifyIf any Registrable Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, defend each of the Trust and the Corporation, severally and not jointly, shall indemnify and hold harmless each Initial Purchaser, each Selling Holder, each personPerson, if any, who controls any Initial Purchaser or such Selling Holder within the meaning of Section 15 the Securities Act, each Person who participates as a sales or placement agent or underwriter in any offering of the Registered Securities Act and each officer, director, partner and employee of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or Section 20 several), including reasonable attorneys' fees and disbursements and reasonable expenses of investigation, incurred by such party or to which such party may become subject pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party foregoing Persons may incur or otherwise become subject to under the Securities Act, the Exchange Act or otherwiseother federal or state laws, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities and expenses arise out of or is are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectussuch registration statement, including any document incorporated by reference therein, preliminary Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any final Prospectus
(ii) the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein, or necessary to make the statements therein not misleading; provided, however, that the indemnification required by this Section 7.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected by the indemnified person without the consent of the Trust or the Corporation (which consent shall not be unreasonably withheld), nor shall the Trust or the Corporation be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises out of or is based upon any omission or alleged omission to state a material fact necessary Violation which occurs in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based reliance upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company Trust or the Corporation by the indemnified party expressly for use therein in connection with such registration; and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, provided further that the indemnity agreement contained in this subsection (a) Section 7 shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, apply to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such lossloss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, damagecontained in or omitted from any preliminary Prospectus if the final Prospectus shall correct such untrue statement or alleged untrue statement, expenseor such omission or alleged omission, liability, claim or action and a copy of such Holder results from the fact that there was final Prospectus has not been sent or given to such person, person at or prior to the written confirmation of the sale of such Registrable Securities to such personperson if an underwriter, a copy of the placement agent or Selling Holder was under an obligation to deliver such final prospectus if the Company had previously furnished copies thereof Prospectus and failed to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partydo so.
(b) Each Holder7.2. To the extent permitted by applicable law, severally and not jointly, agrees to indemnify, defend each Selling Holder shall indemnify and hold harmless the CompanyTrust, its directorsthe Corporation, officerseach of the Trustees of the Trust, employeeseach of the directors of the Corporation, representativeseach of the officers of the Trust or the Corporation who shall have signed the registration statement, agents and any person each Person, if any, who controls the Company Trust or the Corporation within the meaning of Section 15 the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party foregoing Persons may incur or otherwise become subject to under the Securities Act, the Exchange Act or otherwiseother federal or state laws, but only insofar as such losslosses, damageclaims, expensedamages, liabilityliabilities and expenses arise out of or are based upon any Violation, claim or action in each case to the extent that, but only to the extent that, such Violation arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained and was made in reliance upon information furnished in writing by or on behalf of such Selling Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingregistration; provided, however, that (x) the omission indemnification
7.3. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 7, such indemnified party shall deliver to notify the indemnifying party a written notice thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with nationally recognized counsel experienced in such Indemnifying Party matters reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel and to not have the indemnifying party assume its defense, with the fees, disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 to the extent of such prejudice but shall not relieve such Indemnifying Party from the indemnifying party of any liability which that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such Indemnified Party action or otherwiseproceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Such Indemnified Party Any such indemnified party shall have the right to employ its own separate counsel in any such caseaction, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense expenses of such Indemnified Party indemnified party unless (i) the employment of indemnifying party has agreed to pay such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settleindemnifying
7.4. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in required by this Section 6 7 from the indemnifying party is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 indemnified party hereunder in respect of any losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses referred to therein, then each applicable Indemnifying Partyin this Section 7:
(i) The indemnifying party, in lieu of indemnifying such Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand indemnifying party and of the Holders or the Initial Purchasers on the other indemnified parties in connection with the statements or omissions actions which resulted in such losses, claims, damages, liabilities or expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of the Holders or any Initial Purchaser on the other indemnified parties shall be determined by reference to, among other things, whether the untrue statement any Violation has been committed by, or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company by, such indemnifying party or by the Holders or such Initial Purchaser indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, expenses, liabilities, claims liabilities and actions expenses referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.include, subject to the limitations set forth in
(eii) The Company, the Holders and the Initial Purchasers parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission7.4(i). No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
7.5. If indemnification is available under this Section 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 7.4 except that no Selling Holder shall be liable for any amount in excess of the net proceeds it receives in the offering which is the subject of the indemnification proceeding.
7.6. The Holders’ respective obligations to contribute pursuant to of the Trust and the Corporation under this Section 6 are several 7 shall be in proportion addition to any liability which the Trust and the Corporation may otherwise have to the respective amount persons specified in Section 7.1 and the obligations of Registrable Securities they the Selling Holders under this Section 7 shall be in addition to any liability which such Persons may otherwise have sold pursuant to a Shelf Registration Statement, the Trust and not jointthe Corporation. The remedies provided for in this Section 6 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any an indemnified party at law or in equity.
(f) 7.7. The indemnity obligations of the Trust, the Corporation and contribution provisions contained in the Selling Holders of Registrable Securities under this Section 6 7 shall remain operative and in full force and effect regardless survive the completion of (i) any termination offering of Registrable Securities pursuant to a registration statement under this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holderotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Starwood Hotel & Resorts Worldwide Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls In connection with any Initial Purchaser or Holder within the meaning of Section 15 registration of the Securities Act or Section 20 Subject Shares pursuant to this Agreement, AerCap shall indemnify Subscriber and its affiliates and each of the Exchange Act (a “Controlling Person”) and the their respective officers, directors, members, partners, employeesstockholders, representatives employees and agents of the Initial Purchasers, the Holders or any Controlling Person against all expenses (each, an “Indemnified Party”including legal fees and expenses), from and against any lossclaims, damagelosses, expense, liability, claim damages or any liabilities (or actions in respect thereof thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (including or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the reasonable cost statements therein, in light of investigationthe circumstances in which they were made, not misleading, or any violation (or alleged violation) which such Indemnified Party may incur or become subject to under by AerCap of the Securities Act, the Exchange Act or otherwiseany other United States federal or state securities law or any rule or regulation promulgated thereunder applicable to AerCap in connection with any such registration, insofar as such qualification or compliance, and AerCap will reimburse Subscriber and its affiliates and each of their respective officers, directors, members, partners, stockholders, employees and agents for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any claim, loss, damage, expense, liability, claim liability or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyaction.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 9 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 indemnified party hereunder in respect of any expenses, claims, losses, damages, expenses, liabilities, claims damages or actions liabilities referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, AerCap shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such expenses, claims, losses, damages, expenses, liabilities, claims damages or actions (i) liabilities in such proportion as is appropriate (i) to reflect the relative benefits received (or anticipated to be received) by the Company Austin, on the one hand hand, and the Holders or the Initial Purchasers received by Subscriber, on the other hand hand, from the offering of transactions contemplated by the Registrable Securities or Amalgamation Agreement and this Agreement and (ii) ), if the allocation provided by clause (i) above is not permitted by applicable lawunavailable for any reason, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above benefits, but also the relative fault of AerCap and the Company on the one hand and of the Holders or the Initial Purchasers on the other indemnified party in connection with the statements actions or omissions which resulted in such expenses, claims, losses, damages, expenses, liabilities, claims damages or actions, liabilities as well as any other relevant equitable considerations. Benefits received (or anticipated to be received) by AerCap shall be deemed to be equal to the Transaction Value (as defined in the Engagement Letter) and the aggregate value of the Subject Shares sold to Subscriber under this Agreement, and benefits received by Subscriber shall be deemed to be equal to the Transaction Fee paid to Subscriber. The relative fault of AerCap and the Company on the one hand and of the Holders or any Initial Purchaser on the other indemnified party shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement action or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to above in subsection (d) abovethis Section 9(b). Notwithstanding anything to the provisions of contrary, in no event shall any indemnified party be responsible under this Section 6, no Holder shall be required to contribute paragraph for any amount amounts in excess of the amount Transaction Fee actually received by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equitySubscriber.
(fc) The indemnity and contribution provisions contained in indemnification provided by this Section 6 9 shall remain operative and in full force and effect regardless survive the resale by Subscriber of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any HolderSubject Shares.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend indemnify and hold harmless each Initial PurchaserHolder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each Holder, such Holder and each person, if any, Person who controls any Initial Purchaser or such Holder within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and Act, to the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”)fullest extent permitted by applicable law, from and against any lossand all losses, damageclaims, expensedamages, liability, claim liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof (including the reasonable cost of investigationthereof) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arise out of or is are based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf a Registration Statement as originally filed or Prospectusin any amendment thereof, including or the Disclosure Package, or any document incorporated by reference thereinpreliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission and agrees to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimbursereimburse each such indemnified party, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, expense, liability, claim liability or action in respect thereof(whether or not the indemnified party is a party to any proceeding); provided, however, that (i) insofar as the Company will not be liable in any case to the extent that any such loss, claim, damage, expense, liability, claim liability or action expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, made therein in reliance upon and in conformity with written information furnished in writing to the Company by or on behalf of any Initial Purchaser such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit out of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the sales of Registrable Securities concerned, made during a Suspension Period after notice is given pursuant to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyhave.
(b) Each Holder, Holder severally (and not jointly, ) agrees to indemnify, defend indemnify and hold harmless the CompanyCompany and each of its Affiliates, its directors, officers, employees, representativesmembers, managers and agents and any person each Person who controls the Company within the meaning of Section 15 of either the Securities Act or Section 20 of the Exchange Act (eachAct, a “Company Indemnified Party”) to the fullest extent permitted by applicable law, from and against any lossand all losses, damageclaims, expense, liability, claim damages or liabilities to which they or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party them may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities arise out of or is are based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by a Registration Statement as originally filed or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, including preliminary, final or summary Prospectus included in any document incorporated by reference thereinsuch Registration Statement, or in any amendment thereof or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that any such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements is contained in any Prospectus written information relating to such Holder furnished to the Company by or in any amendment or supplement thereto or in any preliminary prospectuson behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the light of the circumstances under offering to which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal Registration Statement or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereofProspectus relates. This indemnity agreement will be in addition to any liability which any such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationhave.
(c) If Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, suit or proceeding (eachsuch indemnified party will, if a “Proceeding”) is brought against any person claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of which indemnity may be sought pursuant the commencement thereof; but the failure so to either subsection notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of this Section 6substantial rights and defenses; and (ii) will not, such person in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the “Indemnified Party”) extent that it shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such Proceeding; providedindemnified party of its election to so assume the defense thereof, however, that the omission to notify such Indemnifying Party indemnifying party shall not relieve such Indemnifying Party from any liability which it may have be liable to such Indemnified Party indemnified party for any legal expenses of other counsel or otherwiseany other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Such Indemnified Party Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel in any such case(and one local counsel), but and the fees indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel shall be at if (i) the expense use of such Indemnified Party unless counsel chosen by the employment of indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have been authorized in writing by such Indemnifying Party in connection with reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the defense of such Proceeding or such Indemnifying Party indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to have charge the indemnified party to represent the indemnified party within a reasonable time after notice of the defense institution of such Proceeding within 30 days of action; or (iv) the receipt of notice thereof or such Indemnified Party indemnifying party shall have reasonably concluded upon authorize the written advice of indemnified party to employ separate counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party)the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understoodthe same general circumstances or allegations, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate counsel firm of attorneys (in addition to any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action)counsel) for all indemnified parties. An Indemnifying Party indemnifying party shall not be liable for under this Section 8 to any indemnified party regarding any settlement of such Proceeding effected without or compromise or consent to the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement entry of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance judgment with such request prior respect to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding claim, action, suit or proceeding in respect of which such Indemnified Party is indemnification or could have been a party and indemnity could have been contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such Indemnified Partyindemnifying party, unless which consent shall not be unreasonably withheld. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement includes or compromise that does not include as an unconditional term thereof the giving by the claimant or plaintiff therein, to such indemnified party, of a full and final release of such Indemnified Party from all liability on claims that are the subject matter of in respect to such Proceeding and does not include an admission of fault, culpability claim or a failure to act, by or on behalf of such Indemnified Partylitigation.
(d) If In the indemnification event that the indemnity provided for in this Section 6 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of indemnified party for any losses, damages, expenses, liabilities, claims or actions referred to thereinreason, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall party agrees to contribute to the amount paid or payable by such Indemnified Party as a result of such aggregate losses, damagesclaims, expensesdamages and liabilities (including, liabilitieswithout limitation, claims legal or actions other expenses reasonably incurred in connection with investigating or defending same) (icollectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company indemnifying party on the one hand and by the Holders or the Initial Purchasers indemnified party on the other hand from the offering of the Registrable Securities or (ii) if New Common Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company indemnifying party on the one hand and of the Holders or the Initial Purchasers indemnified party on the other in connection with the statements or omissions which resulted in such losses, damagesclaims, expenses, liabilities, claims damages or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company indemnifying party on the one hand or by the Holders or such Initial Purchaser indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers parties agree that it would not be just and equitable if contribution pursuant to this Section 6 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in subsection this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (dor actions in respect thereof) abovereferred to above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 68(d), no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to For purposes of this Section 6 are several 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in proportion each case to the respective amount applicable terms and conditions of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity8(d).
(fe) The indemnity and contribution provisions contained in of this Section 6 shall 8 will remain operative and in full force and effect effect, regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or Initial Purchaser the Company or any person controlling any Holder or Initial Purchaserof the officers, or the Company, or the Company’s officers or directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any person controlling indemnification by an indemnifying party is prohibited or limited by law, the Company and indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (iiii) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Security Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any Holderseller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Charter Communications Inc /Mo/)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, Holder and each Holder, each person, if any, person who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Holder Indemnified Party”), from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) except insofar as any such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect therein, provided that the foregoing indemnity shall not apply to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit sales of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concernedby a Holder if, in connection with such sale, such Holder fails to comply with the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder Prospectus delivery requirements under the Securities Act in connection with or initiates such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, during a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified PartySuspension Period.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, liability or claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, liability or claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwiseotherwise unless, and only to the extent that, the Indemnifying Party is materially prejudiced thereby. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the reasonable fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for reasonable fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 90 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, liabilities or claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, liabilities or claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims liabilities or actionsclaims, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, liabilities and claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify, defend indemnify ------------------------------ and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) Shareholders' Representative and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), Shareholders from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arising out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf the Registration Statement or Prospectus, including any document incorporated by reference therein, prospectus contained therein or in any amendment or supplement thereto or in any preliminary prospectus, or arises arising out of or is based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or arises expenses arise out of of, or is are based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusupon, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with allegation thereof based upon information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company by the Shareholders' Representative or any Shareholder or on the Shareholders' behalf expressly for use therein and (ii) and; provided, further, that with respect to any -------- ------- untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, apply to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, claim, damage, expense, liability, claim liability or action of such Holder expense results from the fact that there a current copy of the prospectus was not sent or given to the person asserting any such personloss, claim, damage, liability or expense at or prior to the written confirmation of the sale of such the Registrable Securities to such person, person if it is determined that it was the responsibility of the Shareholders to provide such person with a current copy of the final prospectus if the Company had previously furnished copies thereof to and such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 current copy of the Securities Act or Section 20 of prospectus would have cured the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement defect giving rise to such indemnification obligationloss, claim, damage, liability or expense.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, Yatra Cayman and Yatra India shall jointly and severally indemnify and defend the Investors and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directorstheir shareholders, partners, employeesmembers, representatives and agents of the Initial Purchasersmanagers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representativesagents, agents attorneys, legal counsel and affiliates (collectively, the “Indemnified Persons”) against and hold each Indemnified Person harmless from any person who controls the Company within the meaning and all liabilities, obligations, losses, damages, costs, expenses, claims, penalties, actions, judgments, disbursements of Section 15 any kind or nature whatsoever, interest, fines, cleanup costs, settlements, costs of preparation and investigation, costs incurred in enforcing this indemnity and reasonable attorneys’ and legal counsel’s fees and expenses (collectively, “Losses”), that any of the Securities Act or Section 20 of the Exchange Act (eachIndemnified Persons may incur, a “Company Indemnified Party”) from and against any losssuffer, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur sustain or become subject to under arising out of, relating to, or due to (a) any material inaccuracy or breach of any of the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out representations and warranties of or is based upon any untrue statement or alleged untrue statement of a material fact Yatra India contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, this Agreement or in any amendment or supplement thereto or in any preliminary prospectuscertificate delivered hereunder, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) the nonfulfillment or breach of any covenant, undertaking, agreement or other obligation of Yatra India contained in this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom Agreement or in any certificate delivered hereunder; provided that such indemnity may shall not, as to any Indemnified Person, be sought (available to the “Indemnifying Party”) in writing extent such Losses arise out of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party gross negligence or otherwise. Such 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 willful misconduct of such Indemnified Party unless Person. The indemnities contained in this Section 10.14 shall survive the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence termination of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settleAgreement. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 10.14 is unavailable prohibited under applicable law, rule or regulation as to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to thereinPerson, then each applicable Indemnifying PartyYatra Cayman and Yatra India, in lieu of indemnifying such the Indemnified PartyPerson, shall will contribute to the amount paid or payable by such the Indemnified Party Person as a result of such losses, damages, expenses, liabilities, claims or actions (i) the Losses in such proportion as is appropriate to reflect the relative benefits received by the Company fault of Yatra India, on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable lawhand, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers Indemnified Person, on the other other, in connection with the statements events or omissions circumstances which resulted in such losses, damages, expenses, liabilities, claims or actions, the Losses as well as any other relevant equitable considerations. The relative fault indemnification obligations of the Company on the one hand and Yatra India under this Agreement shall cease immediately upon exit of the Holders Pandara Trust by way of swap or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any HolderShares.
Appears in 1 contract
Sources: Share Subscription Cum Shareholders Agreement (Yatra Online, Inc.)
Indemnification; Contribution. (a) The In connection with any Demand Registration or Piggyback Registration, the Company agrees to indemnify, defend indemnify and hold harmless each Initial Purchaserof the Stockholder Representatives, each Holder, of the Stockholders and each personPerson, if any, who controls any Initial Purchaser or Holder each of the Stockholder Representatives and Stockholders within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Stockholder Indemnified PartyPerson”) from and against any and all loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, and damage, expenseas incurred, liability, claim or action arises arising out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement (or Prospectus, including any document incorporated by reference thereinamendment thereto), or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any Shelf Registration Statement preliminary prospectus or in any Prospectus (or any amendment or supplement thereto thereto) or necessary to make the statements therein not misleadingIssuer Free Writing Prospectus (or any amendment or supplement thereto), or arises out of or is based upon any the omission or alleged omission to state therefrom of a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectustherein, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject and agrees to the limitation set forth immediately preceding this clause, each Holder shall reimburse, reimburse any Stockholder Indemnified Person as incurred, the Company promptly as practicable upon demand for any legal or other expenses reasonably incurred by the Company or any such controlling person Stockholder Indemnified Person in connection with investigating investigating, defending or defending paying any such loss, claim, damage, expenseliability or action; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim or action damage to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in respect thereof. This indemnity agreement will be reliance upon and in addition to any liability which such Holder may otherwise have conformity with information furnished to the Company by or on behalf of the Stockholder or any Person, if any, who controls the Stockholder for use in any Registration Statement (or any amendment thereto), or any preliminary prospectus or Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto).
(b) In connection with any Demand Registration or Piggyback Registration, each participating Stockholder agrees to indemnify and hold harmless the Company, and each person, if any, who controls the Company within the meaning of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount either Section 15 of the proceeds received by such Holder upon the sale Securities Act or Section 20 of the Registrable Securities pursuant Exchange Act against any and all loss, liability, claim and damage described in the indemnity contained in subsection (a) of this Section 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in any Registration Statement (or any amendment thereto) or any preliminary prospectus or Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the Shelf Company by or on behalf of such Stockholder for use in the Registration Statement giving rise to (or any amendment thereto) or such indemnification obligationpreliminary prospectus or Prospectus (or any amendment or supplement thereto).
(c) If Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action, suit action or proceeding (each, a “Proceeding”) is brought commenced against any person it in respect of which indemnity may be sought pursuant hereunder, but failure to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly so notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party an indemnifying party shall not relieve such Indemnifying Party indemnifying party from any liability hereunder to the extent it is not prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of these indemnity provisions. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party or otherwise. Such Indemnified Party indemnified party (who shall have not, except with the right consent of the indemnified party, be counsel to employ the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its own counsel in election so to assume the defense thereof, such indemnifying party shall not be liable to such indemnified party under this Section 6 for any such case, but the fees and legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expenses, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settlethereof. No Indemnifying Party indemnifying party shall, without the prior written consent of any Indemnified Partythe indemnified parties, effect any settlement settle or compromise or consent to the entry of any pending judgment with respect to any litigation, or threatened Proceeding any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which such Indemnified Party indemnification or contribution is sought under this Section 6 (whether or could have been a party and indemnity could have been sought hereunder by such Indemnified Partynot the indemnified parties are actual or potential parties thereto), unless such settlement settlement, compromise or consent (i) includes an unconditional release of such Indemnified Party each indemnified party from all liability on claims that are the subject matter arising out of such Proceeding litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, act by or on behalf of such Indemnified Partyany indemnified party. No indemnified party shall, without the prior written consent of the indemnifying party, effect any settlement of any commenced or threatened litigation, investigation, proceeding or claim in respect of which any indemnification is sought hereunder.
(d) If the indemnification provided for in this Section 6 from the indemnifying party is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 indemnified party hereunder in respect of any losses, damagesclaims, expenses, liabilities, claims damages or actions liabilities referred to therein, then each applicable Indemnifying Partyin this Section 6:
(i) The indemnifying party, in lieu of indemnifying such Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, liabilities or expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering fault of the Registrable Securities indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is shall be appropriate to reflect not only the relative benefits referred to in clause (i) above but also received by the relative fault indemnifying party and the indemnified party from the offering of the Company on the one hand and of the Holders or the Initial Purchasers on the other securities covered by such Registration Statement in connection with which the statements or omissions which resulted actions resulting in such losses, damagesclaims, expenses, liabilities, claims damages or actions, as well as any other relevant equitable considerationsliabilities occurred. The relative fault of the Company such indemnifying party, on the one hand hand, and of the Holders or any Initial Purchaser indemnified party, on the other hand, shall be determined by reference to, among other things, whether the any such untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company indemnifying party or by the Holders or such Initial Purchaser indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damagesclaims, expenses, liabilities, claims and actions damages or liabilities referred to above shall be deemed to include include, subject to the limitations set forth in Section 6(a) and Section 6(b), any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any Proceedingproceeding.
(eii) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of If indemnification is available under this Section 6, no Holder the indemnifying parties shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered indemnify each indemnified party to the public exceeds full extent provided in this Section 6 without regard to the amount of any damages which it has otherwise been required to pay by reason relative fault of such untrue indemnifying party or alleged untrue statement indemnified party or omission or alleged omission. any other equitable consideration referred to in this Section 6(d).
(iii) No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(fiv) For purposes of this Section 6(d), each Person, if any, who controls a Stockholder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Stockholder, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
(e) The indemnity obligations of the Company and contribution provisions contained in the Stockholders under this Section 6 shall remain operative and in full force and effect regardless survive the completion of (i) any termination offering of Registrable Securities pursuant to any Registration Statement under this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaserholder and each affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, each Holder, each person, if any, who controls or under any Initial Purchaser Blue Sky Law or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and regulation against any losslosses, damageclaims, expensedamages, liabilityor liabilities, claim joint or any actions in respect thereof (including the reasonable cost of investigation) several, to which such Indemnified Party holder may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectuspreliminary prospectus, including any document incorporated by reference thereinregistration statement, prospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each such holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, damage, expense, liability, action or claim regardless of the negligence of any such holder or action in respect thereofaffiliate; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense, liability, claim or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained registration statement or prospectus, or any such amendment or supplement thereto, in this subsection (a) shall not inure reliance upon and in conformity with written information furnished to the benefit of any Holder from whom the person asserting Company by any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyholder expressly for use therein.
(b) Each Holder, severally and not jointly, agrees holder of Common Stock registered pursuant to indemnify, defend this Agreement will indemnify and hold harmless the CompanyCompany against any losses, its directorsclaims, officersdamages, employees, representatives, agents and any person who controls or liabilities to which the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachmay become subject, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary prospectus, registration statement or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprospectus, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or was made in any preliminary prospectus, in the light of the circumstances under which they were maderegistration statement or prospectus, not misleadingor any amendment or supplement thereto, in connection reliance upon and in conformity with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have written information furnished to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationholder expressly for use therein.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aPromptly after receipt by an indemnified party under Sections 8(a) or (b) above of this Section 6the commencement of any action, such person (indemnified party shall, if a claim in respect thereof is to be made against the “Indemnified Party”) shall promptly indemnifying party under either such subsection, notify the person against whom such indemnity may be sought (the “Indemnifying Party”) indemnifying party in writing of the institution commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability that it may otherwise have to any indemnified party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of such Proceeding and the Indemnifying Party commencement thereof the indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After notice from the indemnifying party to such indemnified party of its election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from subsections for any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expense, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense thereof other than reasonable costs of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as investigation incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without assumption by the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Partyindemnifying party, unless such settlement includes an unconditional release expenses have been specifically authorized in writing by the indemnifying party, 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 Indemnified Party from all liability on claims indemnified party has been advised by counsel that are the subject matter representation of such Proceeding indemnified party and does not include an admission the indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them, in each of fault, culpability or a failure to act, which cases the fees of counsel for the indemnified party will be paid by or on behalf of such Indemnified Partythe indemnifying party.
(d) If the indemnification provided for in this Section 6 8 is unavailable or insufficient to hold harmless an Indemnified Party indemnified party under subsections (aSection 8(a) and (bor 8(b) of this Section 6 in respect of any losses, claims, damages, expenses, liabilities, claims or actions liabilities (or action in respect thereof) referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders holder or the Initial Purchasers on the other hand holders from this Agreement and from the offering of the Registrable Securities or (ii) if shares of Common Stock. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other holders in connection with the statements statement or omissions which that resulted in such losses, claims, damages, expenses, liabilities, claims or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Holders or such Initial Purchaser holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers holders agree that it would not be just and equitable if contribution pursuant to this Section 6 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 of allocation which that does not take into account of the equitable considerations referred to above in this subsection (d) abovee). Notwithstanding Except as provided in Section 8(c), the provisions of this Section 6, no Holder shall be required to contribute any amount in excess paid or payable by an indemnified party as a result of the amount by which the total price at which the Registrable Securities sold by it were offered losses, claims, damages, or liabilities (or actions in respect thereof) referred to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for above in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.Section
Appears in 1 contract
Sources: Warrant Agreement (Cd Warehouse Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend will indemnify and hold harmless each Initial Purchaser, Holder and each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and Exchanging Dealer against any losslosses, damageclaims, expensedamages or liabilities, liabilityjoint or several, claim or any actions in respect thereof (including the reasonable cost of investigation) to which such Indemnified Party Holder or Exchanging Dealer may incur or become subject to subject, under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or preliminary Prospectus, including any document incorporated by reference thereinpreliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties will reimburse each Holder and Exchanging Dealer for any legal or other expenses reasonably incurred by them such Holder or Exchanging Dealer in connection with investigating or defending any such loss, damage, expense, liability, claim action or action in respect thereofclaim; provided, however, that (i) insofar as the Company shall not be liable in any such case to the extent that any such loss, damageclaim, expense, liability, claim damage or action liability arises out of or is based upon any an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Prospectus, any preliminary Prospectus supplement, the Registration Statement, the indemnity agreement Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by any Holder or Exchanging Dealer expressly for inclusion in the Prospectus; provided further, that if any preliminary Prospectus, any preliminary Prospectus supplement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, contained any alleged untrue statement or allegedly omitted to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and such statement or omission shall have been corrected in a revised preliminary Prospectus, any preliminary Prospectus supplement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, the Company shall not be liable to any Holder or Exchanging Dealer under this subsection (a) shall not inure with respect to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims alleged untrue statement or actions purchased the Registrable Securities concerned, alleged omission to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damageclaim, expense, liability, claim damage or action liability of such Holder or Exchanging Dealer results from the fact that such Holder or Exchanging Dealer sold Offered Debt Securities or Exchange Debt Securities to a person to whom there was not sent or given to such persongiven, at or prior to the written confirmation of such sale, a copy of a revised preliminary Prospectus (excluding documents incorporated by reference), preliminary Prospectus supplement (excluding documents incorporated by reference), the Prospectus (excluding documents incorporated by reference), the Prospectus as amended or supplemented (excluding documents incorporated by reference), any other amended prospectus relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement thereto relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference), as the case may be, containing a correction of such alleged misstatement or omission, if the Company has made available copies thereof to such Holder or Exchanging Dealer prior to the confirmation of such sale; and provided, further, that the Company shall not be liable to any Holder or Exchanging Dealer under this subsection (a) to the extent that any such loss, claim, damage or liability of such Holder or Exchanging Dealer results from the use by such Holder or Exchanging Dealer of the Prospectus as amended or supplemented (excluding documents incorporated by reference) or the Prospectus as amended or supplemented as it may be further amended or supplemented (excluding documents incorporated by reference), as the case may be (i) otherwise than in connection with an offer or sale of the Offered Debt Securities or the Exchange Debt Securities, or (ii) at any time nine months or more after the time of issue of the Prospectus as amended or supplemented unless the Company has prior to such Registrable use amended or supplemented the Prospectus as amended or supplemented to comply with Section 10(a)(3) of the Act if required pursuant to Section 5(c) hereof and such Holder or Exchanging Dealer uses the Prospectus as amended or supplemented as so further amended or supplemented. Each Holder and Exchanging Dealer acknowledges that the indemnity agreement in this subsection (a) does not extend to any liability which such Holder or Exchanging Dealer might have under Section 5(b) of the Act by reason of the fact that such Holder or Exchanging Dealer sold Offered Debt Securities or Exchange Debt Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such personsale, a copy of the final Prospectus (excluding documents incorporated by reference), the Prospectus as amended or supplemented (excluding documents incorporated by reference), any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement relating thereto (excluding documents incorporated by reference), as the case may be, if the Company had previously furnished has made available copies thereof to such Holder; provided furtherHolder or Exchanging Dealer. For purposes of this subsection (a) the Prospectus (excluding documents incorporated by reference), howeverthe Prospectus as amended or supplemented (excluding documents incorporated by reference), that this indemnity agreement will any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement relating thereto (excluding documents incorporated by reference), shall not be in addition deemed to any liability which have been made available to a Holder or Exchanging Dealer until such Holder or Exchanging Dealer has received the Company may otherwise have to such Indemnified Partysame.
(b) Each Holder, severally Holder and not jointly, agrees to indemnify, defend Exchanging Dealer will indemnify and hold harmless the CompanyCompany against any losses, its directorsclaims, officers, employees, representatives, agents and any person who controls damages or liabilities to which the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachmay become subject, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such losslosses, damageclaims, expense, liability, claim damages or action arises liabilities (or actions in respect thereof) arise out of or is are based upon any an untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by any preliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or on behalf of such Holder supplemented and any other prospectus relating to the Company expressly for use in any Shelf Registration Statement Offered Debt Securities or Prospectus, including any document incorporated by reference thereinthe Exchange Debt Securities, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arise out of or is are based upon any the omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or arises out of alleged untrue statement or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or was made in any preliminary prospectusProspectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any such amendment or supplement, in the light of the circumstances under which they were made, not misleading, reliance upon and in connection conformity with such information; and, subject written information furnished to the limitation set forth immediately preceding this clause, each Company by such Holder shall reimburse, as incurred, or Exchanging Dealer expressly for inclusion therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim such action or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationclaim.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Promptly after receipt by an indemnified party under subsection (a) or (b) above of this Section 6notice of the commencement of any action, such person (indemnified party shall, if a claim in respect thereof is to be made against the “Indemnified Party”) shall promptly indemnifying party under such subsection, notify the person against whom such indemnity may be sought (the “Indemnifying Party”) indemnifying party in writing of the institution commencement thereof, and in the event that such indemnified party shall not so notify the indemnifying party within 30 days following receipt of any such notice by such indemnified party, the indemnifying party shall have no further liability under such subsection to such indemnified party unless such indemnifying party shall have received other notice addressed and delivered in the manner provided in Section 8(c) hereof of the commencement of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingaction; provided, however, that but the omission so to notify such Indemnifying Party the indemnifying party shall not relieve such Indemnifying Party it from any liability which it may have to any indemnified party otherwise than under such Indemnified Party or otherwisesubsection. Such Indemnified Party shall have the right to employ its own counsel in In case any such caseaction shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof as provided above, but the fees and indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of such other counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized or any other expenses, in writing each case subsequently incurred by such Indemnifying Party indemnified party, in connection with the defense thereof other than reasonable costs of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyinvestigation.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party indemnified party under subsections subsection (a) and or (b) of this Section 6 above in respect of any losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions in respect thereof) referred to therein, then each applicable Indemnifying Partyindemnifying party shall, in lieu of indemnifying such Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, damagesclaims, expenses, liabilities, claims damages or liabilities (or actions (iin respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers and Exchanging Dealers on the other hand from the offering of the Registrable Offered Debt Securities or Exchange Debt Securities to which such loss, claim, damage or liability (iior action in respect thereof) if relates. If, however, the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable lawlaw or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers and Exchanging Dealers on the other in connection with the statements or omissions which resulted in such losses, damagesclaims, expenses, liabilities, claims damages or actionsliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The benefits received by the Company shall be deemed to be equal to the sum of (x) the total net proceeds from the Initial Placement (before deducting expenses) as set forth on the cover page of the Final Offering Memorandum and (y) the total amount of additional interest which the Company was not required to pay as a result of registering the securities covered by the Registration Statement which resulted in such losses, claims, damages or liabilities. Benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions as set forth on the cover page of the Final Offering Memorandum, and benefits received by any other Holders or Exchanging Dealers shall be deemed to be equal to the value of receiving Offered Debt Securities or Exchange Debt Securities, as applicable, registered under the Act. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by the such Holders or such Initial Purchaser Exchanging Dealers on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims Company and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers Exchanging Dealers agree that it would not be just and equitable if contribution pursuant to this Section 6 subsection (d) were determined by pro rata allocation (even if the Holders and Exchanging Dealers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) aboveshall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6subsection (d), no Holder or Exchanging Dealer shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable applicable Offered Debt Securities or Exchange Debt Securities sold by it were offered pursuant to the public Registration Statement exceeds the amount of any damages which it such Holder or Exchanging Dealer has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations of the Holders and Exchanging Dealers in this subsection (d) to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(fe) The indemnity and contribution provisions contained in obligations of the Company under this Section 6 shall remain operative be in addition to any liability that the Company may otherwise have and in full force shall extend, upon the same terms and effect regardless conditions, to each officer and director of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any a Holder or Initial Purchaser or any person controlling any Exchanging Dealer and to each person, if any, who controls a Holder or Initial Purchaser, Exchanging Dealer within the meaning of the Act or the CompanyExchange Act; and the obligations of the Holders and Exchanging Dealers under this Section 6 shall be in addition to any liability that the respective Holders and Exchanging Dealers may otherwise have and shall extend, or upon the Company’s officers or directors or any person controlling same terms and conditions, to each officer and director of the Company and (iii) to each person, if any, who controls the sale Company within the meaning of any Registrable Security by any Holderthe Act or the Exchange Act.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Notice Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Notice Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Notice Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnify pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) in, any Shelf Registration Statement or any Prospectus; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (aSection 6(a) shall not inure to the benefit of any Notice Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Notice Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Notice Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if prospectus, provided the Company had previously furnished (whether physically or by public access through the SEC’s Electronic Data Gathering And Retrieval (▇▇▇▇▇) system) sufficient copies thereof of such final prospectus to such HolderHolder in a timely manner as to reasonably permit such Holder to send or give a copy of such final prospectus to such person at or prior to the written confirmation of such sale; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. If any Consideration Shares are included in a registration statement under this Article IV:
(a) The Company agrees to indemnifyTo the extent permitted by applicable law, defend Corn Products shall indemnify and hold harmless each Initial PurchaserSelling Entity, each Holder, each personPerson, if any, who controls any Initial Purchaser or Holder such Selling Entity within the meaning of Section 15 the Securities Act, and each officer, director, partner, and employee of such Selling Entity and such controlling Person, against any and all losses, claims, damages, liabilities and expenses, including reasonable attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party foregoing Persons may incur or become subject to under the Securities Act, the Exchange Act or otherwiseother federal or state laws, insofar as such losslosses, damageclaims, expensedamages, liability, claim or action arises liabilities and expenses arise out of or is are based upon or caused by any untrue statement or alleged untrue statement of a material fact contained in such registration statement, any Shelf Registration Statement prospectus or Prospectus, including any document incorporated by reference therein, preliminary prospectus contained therein or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arising out of or is of, based upon or caused by any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred are caused by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission (collectively, a "Violation") based upon information relating to Corn Products or its Affiliates; provided, however, that Corn Products shall not be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to Corn Products by the indemnified party or any of its Affiliates expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 4.6 shall not apply to the extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact contained infact, or an omission or alleged omission to state a material fact, contained in or omitted fromfrom 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 the co-managing underwriter selected by the Arancia Representative was under an obligation to deliver such final prospectus and failed to do so.
(b) To the extent permitted by applicable law, each Selling Entity shall indemnify and hold harmless Corn Products, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls Corn Products within the meaning of the Securities Act, any other Selling Entity, any controlling Person of any such other Selling Entity and each officer, director, partner, and employee of such other Selling Entity and such controlling Person, against any and all losses, claims, damages, liabilities and expenses, including reasonable attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case to the extent that such Violation occurs in reliance upon and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company such Selling Entity expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationregistration.
(c) If Promptly after receipt by an indemnified party under this Section 4.6 of notice of the commencement of any action, suit suit, proceeding, investigation or proceeding (each, threat thereof made in writing for which such indemnified party may make a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of claim under this Section 64.6, such person (indemnified party shall deliver to the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing indemnifying party a written notice of the institution of such Proceeding commencement thereof and the Indemnifying Party indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such Proceeding; providedaction, howeverif prejudicial to its ability to defend such action, that shall relieve such indemnifying party of any liability to the omission to notify such Indemnifying Party indemnified party under this Section 4.6 but shall not relieve such Indemnifying Party from the indemnifying party of any liability which that it may have to any indemnified party otherwise than pursuant to this Section 4.6. Any such Indemnified Party or otherwise. Such Indemnified Party indemnified party shall have the right to employ its own separate counsel in any such caseaction, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with indemnifying party, the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party indemnifying party shall not have the right to direct that portion of assume the defense of such Proceeding action, claim or proceeding on behalf of the Indemnified Partysuch indemnified party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that the indemnifying party shall not, in connection with any one such Indemnifying Party shall not action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate counsel in any firm of attorneys and one Proceeding or series firm of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to at any time for all such actionindemnified parties). An Indemnifying Party No indemnifying party shall not be liable to an indemnified party for any settlement of such Proceeding effected any action, proceeding or claim without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Partyindemnifying party, such Indemnifying Party agrees consent not to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyunreasonably denied.
(d) If the indemnification provided for in required by this Section 6 4.6 from the indemnifying party is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 indemnified party hereunder in respect of any losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses referred to therein, then each applicable Indemnifying Partyin this Section 4.6:
(i) The indemnifying party, in lieu of indemnifying such Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand indemnifying party and of the Holders or the Initial Purchasers on the other indemnified parties in connection with the statements or omissions actions which resulted in such losses, claims, damages, liabilities or expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand such indemnifying party and of the Holders or any Initial Purchaser on the other indemnified parties shall be determined by reference to, among other things, whether the untrue statement any Violation has been committed by, or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company by, such indemnifying party or by the Holders or such Initial Purchaser indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, expenses, liabilities, claims liabilities and actions expenses referred to above shall be deemed to include include, subject to the limitations set forth in Section 4.6(a) and Section 4.6(b), any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any Proceedingproceeding.
(eii) The Company, the Holders and the Initial Purchasers parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6 4.6 were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in subsection Section 4.6(d)(i).
(de) above. Notwithstanding the provisions of If indemnification is available under this Section 64.6, no Holder the indemnifying parties shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered indemnify each indemnified party to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies full extent provided for in this Section 6 are not exclusive and shall not limit any rights 4.6 without regard to the relative fault of such indemnifying party or remedies which may otherwise be available to any indemnified party at law or any other equitable consideration referred to in equitySection 4.6(d).
(f) The indemnity obligations of Corn Products and contribution provisions contained in the Selling Entities under this Section 6 4.6 shall remain operative and in full force and effect regardless survive the completion of (i) any termination offering of Consideration Shares pursuant to a registration statement pursuant to this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Stockholder Agreement (Corn Products International Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, will indemnify each Holder, each personof such Holders’ officers, if anydirectors, who controls any Initial Purchaser partners, agents, employees and representatives, each underwriter, and each person controlling such Holder or Holder underwriter within the meaning of Section 15 of the Securities Act Act, with respect to each registration, qualification or Section 20 of the Exchange Act compliance effected pursuant to this Agreement, against all expenses, claims, losses, damages and liabilities (a “Controlling Person”) and the respective officersor actions, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders proceedings or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions settlements in respect thereof (including the reasonable cost of investigationthereof) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arising out of or is based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in any Shelf Registration Statement prospectus, offering circular or Prospectus, any other document (including any document incorporated by reference thereinrelated registration statement, notification or the like) incident to any such registration, qualification or compliance, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon on any omission (or alleged omission omission) to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, and will reimburse each such indemnified person for any legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon on any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with based upon written information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly by such Holder or such underwriter and stated to be specifically for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, therein. It is agreed that the indemnity agreement contained in this subsection (aSection 6(a) shall not inure apply to the benefit amounts paid in settlement of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, claim, damage, expense, liability, claim liability or action of if such Holder results from settlement is effected without the fact that there was not sent or given to such person, at or prior to the written confirmation consent of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability (which the Company may otherwise have to such Indemnified Partyconsent has not been unreasonably withheld or delayed).
(b) Each Holder, severally and not jointly, agrees Holder of Registrable Securities included in any registration effected pursuant to indemnify, defend and hold harmless this Agreement shall indemnify the Company, each of its directors, officers, employeesagents, employees and representatives, agents each underwriter, and any each person who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act Act, each other participating Holder and each of their officers, directors and partners, and each person controlling such holders, against all claims, losses, damages and liabilities (or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigationthereof) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arising out of or is based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in information furnished in writing by any such registration statement, prospectus, offering circular or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinother document, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission (or alleged omission omission) to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with and will reimburse such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company indemnified persons for any legal or any other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any such claim, loss, damage, expenseliability or action, liabilityin each case to the extent, claim but only to the extent, that such untrue statement (or action alleged untrue statement) or omission (or alleged omission) is made in respect thereof. This indemnity agreement will be such registration statement, prospectus, offering circular or other document in addition to any liability which such Holder may otherwise have reliance upon and in strict conformity with written information furnished to the Company by or on behalf of such Holder; provided, however, that (x) no Holder shall be liable hereunder for any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater amounts in amount than the dollar amount excess of the net proceeds received by such Holder upon the sale of the Registrable Securities pursuant to such registration, and (y) the Shelf Registration Statement giving rise obligations of such Holder hereunder shall not apply to amounts paid in settlement of any such indemnification obligationclaims, losses, damages or liabilities (or actions in respect thereof) if such settlement is effected without the consent of such Holder (which consent has not been unreasonably withheld or delayed).
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant Each party entitled to either subsection (a) or (b) of indemnification under this Section 6, such person 6 (the “Indemnified Party”) shall promptly notify give notice to the person against whom such indemnity may be sought party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom through counsel approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in writing such defense but the fees and disbursements of counsel to an Indemnified Party so choosing to participate shall be at the institution expense of such Proceeding and party, unless (i) the Indemnifying Party shall assume have failed to retain counsel for the defense Indemnified Party as aforesaid, or (ii) the Indemnified Party shall have reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available to the Indemnifying Party or that the interests of such Proceedingthe Indemnified Party conflict with the interests of the Indemnifying Party; provided, however, that the omission failure of any Indemnified Party to notify such Indemnifying Party give notice as provided herein shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior its obligations under this Section 6 to the date of extent such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settlefailure is not prejudicial. No Indemnifying Party in the defense of any such claim or litigation shall, without except with the prior written consent of any each Indemnified Party, effect consent to entry of any judgment or enter into any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes does not include an unconditional release of such Indemnified Party from all liability on claims that are in respect to such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the subject matter claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with defense of such Proceeding claim and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partylitigation resulting therefrom.
(d) If the indemnification provided for in this Section 6 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in with respect of to any lossesloss, damagesliability, expensesclaim, liabilities, claims damage or actions expense referred to therein, then each applicable the Indemnifying Party, in lieu of indemnifying such Indemnified PartyParty hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, damagesliability, expensesclaim, liabilities, claims damage or actions (i) expense in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Indemnifying Party on the one hand and of the Holders or the Initial Purchasers Indemnified Party on the other in connection with the statements or omissions which resulted in such lossesloss, damagesliability, expensesclaim, liabilities, claims damage or actions, expense as well as any other relevant equitable considerations; provided, however, that in any case, no Indemnifying Party shall be required to contribute an amount in excess of the net proceeds received by it from all Registrable Securities sold in the transactions related to such statements or omissions. The relative fault of the Company on the one hand Indemnifying Party and of the Holders or any Initial Purchaser on the other Indemnified Party shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Indemnifying Party or by the Holders or such Initial Purchaser Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The CompanyNotwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in an underwriting agreement entered into in connection with an underwritten public offering are in conflict with the foregoing provisions, the Holders and provisions in the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder underwriting agreement shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equitycontrol.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnify pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein in, any Shelf Registration Statement or any Prospectus, including information provided by such Holder in a Notice and (ii) Questionnaire; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that (i) this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified PartyParty and (ii) this indemnity agreement will not apply to any loss, damage, expense, liability or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information, (ii) arises out of or is based upon a sale of Registrable Securities during a Suspension Period by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i) or (iii) arises out of or is based upon a sale of Registrable Securities by a Notice Holder without delivery of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(g) or Section 2(d)(i)(C); and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent the Indemnifying Party is materially prejudiced thereby. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any the Initial Purchaser Purchasers on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, (i) each Holder, (ii) each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and (a “Controlling Person”iii) and the respective officers, directors, partners, members, employees, representatives and agents of the Initial Purchasers, the Holders each Holder or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or ProspectusProspectus or any free writing prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or any free writing prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnification pursuant to this Section 5(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration StatementStatement or any Prospectus; provided, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless (i) the Company, (ii) its directors, officers, employees, representatives, agents employees and (iii) any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectussuch Holder Information, in the light of the circumstances under which they such statements were made, not misleading, in connection with such information; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 5(a) or (b) of this Section 65(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 5 is unavailable to an Indemnified Party under subsections (aSection 5(a) and (b) of this or Section 6 5(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Holders, on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable lawhand, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any Initial Purchaser Holders, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, Company and the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 5 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 5(d) above. Notwithstanding the provisions of this Section 65, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 5 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial PurchaserHolder, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (American Oil & Gas Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, Holder and each person, if any, who controls any Initial Purchaser or Holder (a “Controlling Person”) within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an a “Holder Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions action in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Holder Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that the indemnity agreement contained in this subsection (ia) shall not inure to the benefit of any Holder Indemnified Party insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or such Holder Indemnified Party to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase any Shelf Registration Statement or Prospectus; provided further, that no Holder Indemnified Party shall be entitled to indemnity pursuant to this Section 6(a) to the extent, and any only to the extent, such loss, damage, expense, liability, claim or action arises out of (1) a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities by such Holder results from the fact that there was not sent or given Indemnified Party during a Suspension Period, provided such Holder Indemnified Party received, prior to such persondisposition, at a Suspension Notice with respect to such Suspension Period or prior (2) such Holder Indemnified Party’s failure to deliver, if required pursuant to the written confirmation of Securities Act, the sale of such Registrable Securities most recent applicable Prospectus provided to such person, a copy of the final prospectus if Holder by the Company had previously furnished copies thereof to such Holder; provided further, however, that this or on file with the SEC. This indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyany Holder or any of its Controlling Persons.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading; (B) a sale, by such Holder, pursuant to a Shelf Registration Statement, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder with a Suspension Notice; or arises out (C) a public sale of or is based upon any omission or alleged omission to state a material fact necessary in order to make Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were made, not misleading, in connection most recent applicable Prospectus provided to such Holder by the Company or on file with such informationthe SEC; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling other person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling personsCompany Indemnified Party. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party Party, or the delay of such notification, shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party under this Section 6 except to the extent such Indemnifying Party is materially prejudiced by such omission or otherwisedelay. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ forty-five (45) days prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 6, or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial PurchaserHolder, or the Company, Company or the Company’s officers or directors directors, officers, employees, representatives, agents or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to shall indemnify, defend and hold harmless each Initial Purchaserto ------------------------------- the fullest extent permitted by law, each Holderholder of Registrable Securities, its officers, directors and agents, if any, and each personPerson, if any, who controls any Initial Purchaser or Holder such holder within the meaning of Section 15 of the Securities Act Act, against all losses, claims, damages, liabilities (or Section 20 of the Exchange Act (a “Controlling Person”proceedings in respect thereof) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person expenses (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or common law or otherwise), insofar as such lossjoint or several, damage, expense, liability, claim resulting from any violation by the Company of the provisions of the Securities Act or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement registration statement or Prospectus, including any document incorporated by reference therein, prospectus (and as amended or in any amendment supplemented if amended or supplement thereto supplemented) or in any preliminary prospectus, prospectus or arises out of or is based upon caused by any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, 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 offering pursuant to any registration statement provided for under this Section 2 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 offering pursuant to any registration statement provided for under this Section 2 is made through underwriters, the Company agrees, to the extent required by such underwriters, to enter into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, their officers, directors 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 hereinbefore provided with respect to the indemnification of the holders of Registrable Securities; provided that the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending 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, to the extent that the loss, claim, damage, expense, liability, claim liability (or action proceedings in respect thereof; provided, however, that (i) insofar as any or expense for which indemnification is claimed results from such loss, damage, expense, liability, claim underwriter's failure to send or action arises out give a copy of an amended or is based upon any supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus Person if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid omission was corrected in such amended or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred supplemented final prospectus prior to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders written confirmation and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation underwriter was provided with such amended or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equitysupplemented final prospectus.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnifyshall indemnify each of the Selling Stockholders, defend and hold harmless each Initial Purchaser, each Holder, each person, person (if any, ) who controls any Initial Purchaser or Holder such Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 of 1933, as amended (the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”"Act"), from against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of counsel incurred in defending against any losssuch claim, damage, expense, damage or liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in any Shelf the registration statement filed or to be filed with the Securities and Exchange Commission (the "Commission"), in connection with the Public Offering, as the same may be amended or supplemented from time to time (the "Registration Statement or Prospectus, including any document incorporated by reference therein, Statement") or in any amendment or supplement thereto or in any preliminary prospectusprospectus filed with, or arises out of delivered to, the Commission in connection with the Public Offering, or is based upon caused by any omission or alleged omission to state therefrom of a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectustherein, in the light of the circumstances under in which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) -------- ------- insofar as any such losslosses, damageclaims, expensedamages, liability, claim or action arises out of or is based upon any liabilities are caused by an untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or any material fact omitted from, and in conformity with information relating to a Selling Stockholder furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly by such Selling Stockholder for use therein and (ii) with respect to in the Registration Statement or any untrue statement amendment or omission supplement thereto, or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such lossesprospectus, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if then the Company had previously furnished copies thereof shall have no obligation hereunder to indemnify the Selling Stockholder furnishing such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyinformation.
(b) Each HolderSelling Stockholder shall indemnify each of the Company and the other Selling Stockholders, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any each person (if any) who controls the Company or such other Selling Stockholder within the meaning of Section 15 of the Securities Act or Section 20 Act, against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of the Exchange Act (each, a “Company Indemnified Party”) from and counsel incurred in defending against any losssuch claim, damage, expense, damage or liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or in any prospectus filed with, or delivered to, the Commission in connection with the Public Offering, or caused by any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, but only with respect to information relating to such Selling Stockholder furnished in writing by or on behalf of such Holder to the Company Selling Stockholder expressly for use in any Shelf the Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person prospectus, provided, however, no -------- ------- Selling Stockholder shall be liable in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to an amount that exceeds the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount aggregate public offering price of the proceeds received Stockholder Shares sold by such Holder upon the sale Selling Stockholder, net of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationunderwriting discount.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person The indemnity agreements of the Company and the Selling Stockholders contained in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) 2 shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) remain in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement effect regardless of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, investigation made by or on behalf of such Indemnified Partyany indemnified party and shall survive delivery of the shares of Common Stock pursuant to the Public Offering.
(d) If the In order to provide for just and equitable contribution in circumstances in which indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections paragraph (a) and (b) of this Section 6 in respect 2 is unavailable, the Company and each of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, the Selling Stockholders shall contribute to the amount paid or payable by such Indemnified Party as a result of such aggregate losses, claims, damages, expensesliabilities and expenses (including all reasonable fees and disbursements of counsel incurred in defending against any claim, liabilitiesdamage, claims or actions (i) liability), to which one or more of the Selling Stockholders may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative relevant fault of the Company on and the one hand and of the Holders or the Initial Purchasers on the other respective Selling Stockholders in connection with the statements or omissions which that resulted in such losses, claims, damages, expenses, liabilities, claims or actions, liabilities and expenses as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to: provided, among other thingshowever, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.that: -------- -------
(ei) The Companyin any case where any Selling Stockholder is seeking contribution hereunder, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Selling Stockholder shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute the remaining Selling Stockholders pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any investigation made case be required to contribute or make any payments under this paragraph (d) which in the aggregate exceed his pro rata share of such losses, claims, damages, liabilities and expenses determined in accordance with the total number of Company Shares and Stockholder Shares sold by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchasereach respective party hereto provided, or the Companyhowever, or the Company’s officers or directors or any person controlling the Company and that, -------- ------- except as set forth in subparagraph (iii) of this paragraph (d), no Selling Stockholder shall be liable to contribute an amount that exceeds the sale aggregate public offering price of the Stockholder Shares sold by the Selling Stockholder, net of the underwriting discount;
(iii) in the event the Company or any Registrable Security Selling Stockholder defaults on its obligation to make any contribution pursuant to this paragraph (d), the amount that each of the remaining parties is obligated to contribute hereunder shall be increased in accordance with the relation of the number of shares of Common Stock being sold by each such remaining party to the aggregate number of shares of Common Stock being sold by all such remaining parties;
(iv) neither the Company nor any HolderSelling Stockholder will be required to make any contribution to another Selling Stockholder with respect to matters for which the other Selling Stockholder would not otherwise be entitled to be indemnified under paragraph (a) of this Section 2 had such indemnification been available; and
(v) for purposes of this paragraph (d), each person, if any, who controls a Selling Stockholder within the meaning of Section 15 of the Act, and each director, officer or partner (if any) of such Selling Stockholder, shall have the same rights to contribution under this Agreement as such Selling Stockholder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to shall indemnify, defend and hold harmless each Initial Purchaserto the fullest extent permitted by law, each Holderholder of Registrable Securities, its officers, directors, partners, employees and agents, if any, and each personPerson, if any, who controls any Initial Purchaser or Holder such holder within the meaning of Section 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 violation by the Company of the provisions of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement registration statement or Prospectus, including any document incorporated by reference therein, prospectus (and as amended or in any amendment supplemented if amended or supplement thereto supplemented) or in any preliminary prospectus, prospectus or arises out of or is based upon caused by any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, 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 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 to the same extent as herein before provided with respect to the indemnification of the holders of Registrable Securities; provided that the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending 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, expense, liability, claim liability (or action proceedings in respect thereof; provided, however, that (i) insofar as any or expense for which indemnification is claimed results from such loss, damage, expense, liability, claim underwriter's failure to send or action arises out give a copy of an amended or is based upon any supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the Person if such statement or omission was corrected in such amended or supplemented final prospectus if the Company had previously furnished copies thereof prior to such Holder; written confirmation and the underwriter was provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to with such Indemnified Partyamended or supplemented final prospectus.
(b) Each HolderIn connection with any registration statement in which a holder of Registrable Securities is participating, each such holder, severally and not jointly, agrees to shall indemnify, defend and hold harmless to the fullest extent permitted by law, the Company, its each underwriter and their respective officers, directors, officersemployees and agents, employeesif any, representativesand each Person, agents and any person if any, who controls the Company or such underwriter within the meaning of Section section 15 of the Securities Act or Section 20 of the Exchange Act (eachAct, a “Company Indemnified Party”) from and against any losslosses, damageclaims, expensedamages, liability, claim liabilities (or any actions proceedings in respect thereof (including the reasonable cost of investigationthereof) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinfact, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state of a material fact required to be stated in any Shelf Registration Statement the registration statement or in prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, in connection with such information; and, subject but only to the limitation set forth immediately preceding this clause, each Holder extent that such untrue statement is contained in or such omission is from information so concerning a holder furnished in writing by such holder expressly for use therein; provided that such holder's obligations hereunder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition limited to any liability which such Holder may otherwise have an amount equal to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds received by to such Holder upon the sale holder of the Registrable Securities sold pursuant to the Shelf Registration Statement giving rise to such indemnification obligationregistration statement.
(c) If Any Person entitled to indemnification under the provisions of this Section 3.7 shall (i) give prompt notice to the indemnifying party of any action, suit or proceeding claim with respect to which it seeks indemnification and (each, ii) unless in such indemnified party's reasonable judgment a “Proceeding”) is brought against any person conflict -21- of interest between such indemnified and indemnifying parties may exist in respect of which indemnity may be sought pursuant such claim, permit such indemnifying party to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingclaim, with counsel reasonably satisfactory to the indemnified party; providedand if such defense is so assumed, however, that the omission to notify such Indemnifying Party indemnifying party shall not relieve enter into any settlement without the consent of the indemnified party if such Indemnifying Party from settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any liability for any settlement made without its consent (which it may have shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article III shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such Indemnified Party or otherwise. Such Indemnified Party indemnifying party shall have the right not be obligated to employ its own counsel in any such case, but pay the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses firm of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt all parties indemnified by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding indemnifying party in respect of which such Indemnified Party is or could have been claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release any other of such Indemnified Party from all liability on claims that are the subject matter of indemnified parties in respect to such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyclaim.
(d) If for any reason the indemnification provided for in this Section 6 foregoing indemnity is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to thereinunavailable, then each applicable Indemnifying Party, in lieu of the indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company indemnifying party on the one hand and the Holders or the Initial Purchasers indemnified party on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable lawApplicable Law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the Company on indemnifying party and the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, indemnified party as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6foregoing, no Holder holder of Registrable Securities shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise such holder would have been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionto an indemnified party if the indemnity under Section 3.7(b) was available. No person Person guilty of fraudulent misrepresentation (within the meaning of Section section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations obligation of any Person to contribute pursuant to this Section 6 are 3.7 shall be several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in .
(e) An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 6 are not exclusive and shall not limit any rights 3.7 to or remedies which may otherwise be available to any for the account of the indemnified party at law from time to time promptly upon receipt of bills or in equityinvoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution provisions agreements contained in this Section 6 3.7 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser a participating holder of Registrable Securities, its officers, directors, agents or any person controlling Person, if any, who controls such holder as aforesaid, and shall survive the Transfer of Equity Securities by such holder and the termination of this Agreement for any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holderreason.
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify, defend indemnify ------------------------------ and hold harmless each Initial Purchaser, each Holder, each person, if any, who controls any Initial the Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arising out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf the Registration Statement or Prospectus, including any document incorporated by reference therein, prospectus contained therein or in any amendment or supplement thereto or in any preliminary prospectus, or arises arising out of or is based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or arises expenses arise out of of, or is are based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusupon, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with allegation thereof based upon information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company by the Purchaser or on the Purchaser's behalf expressly for use therein and (ii) and; provided, further, that with respect to -------- ------- any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statementprospectus, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, apply to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, claim, damage, expense, liability, claim liability or action of such Holder expense results from the fact that there a current copy of the prospectus was not sent or given to the person asserting any such personloss, claim, damage, liability or expense at or prior to the written confirmation of the sale of such the Registrable Securities to such person, person if it is determined that it was the responsibility of the Purchaser to provide such person with a current copy of the final prospectus if the Company had previously furnished copies thereof to and such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 current copy of the Securities Act or Section 20 of prospectus would have cured the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement defect giving rise to such indemnification obligationloss, claim, damage, liability or expense.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Miller Exploration Co)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement Statement, Prospectus or Issuer Free Writing Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus, Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) with respect to in, any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure Prospectus or Issuer Free Writing Prospectus, including, without limitation, information provided to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered Company by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, in a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderNotice and Questionnaire; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party; provided further, however, that no Initial Purchaser or Holder shall be entitled to this indemnity to the extent, and only to the extent, such loss, damage, expense, liability, claim or action arises out of a disposition, pursuant to a Registration Statement, of Registrable Securities by such Initial Purchaser or Holder, as the case may be, during a Suspension Period, provided such Initial Purchaser or Holder, as the case may be, received, prior to such disposition, a Suspension Notice with respect to such Suspension Period.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, representatives and agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in Prospectus, or any amendment or supplement thereto thereto, or necessary to make the statements therein such Holder Information not misleading; (B) a sale, by such Holder, pursuant to a Registration Statement, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder with a Suspension Notice with respect to such Suspension Period; or arises out (C) a public sale of or is based upon any omission or alleged omission to state a material fact necessary in order to make Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were made, not misleading, in connection with most recent applicable Prospectus provided to such informationHolder by the Company pursuant to Section 3(h) or Section 2(d)(i)(C); and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale sale, pursuant to the Registration Statement, of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and payment of all fees and expense; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such 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 the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have have, within a reasonable period of time in light of the circumstances, employed counsel to have charge of the defense of defend such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, fault or culpability or a failure to act, act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company Company, on the one hand hand, and by the Holders or the Initial Purchasers Purchasers, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company Company, on the one hand hand, and of the Holders or the Initial Purchasers Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company Company, on the one hand hand, and of the Holders or any the Initial Purchaser Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such the Initial Purchaser Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Home Inns & Hotels Management Inc.)
Indemnification; Contribution. (a) The Company agrees to KHC shall indemnify, defend and hold harmless each Initial Purchaserto the fullest extent permitted by law, each Holderholder of KHC Registrable Securities, its officers, directors, partners, employees and agents, if any, and each personPerson, if any, who controls any Initial Purchaser or Holder such holder within the meaning of Section 15 of the Securities Act Act, against all losses, claims, damages, liabilities (or Section 20 of the Exchange Act (a “Controlling Person”proceedings in respect thereof) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person expenses (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or common law or otherwise), insofar as such lossjoint or several, damage, expense, liability, claim resulting from any violation by KHC of the provisions of the Securities Act or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement registration statement or Prospectus, including any document incorporated by reference therein, prospectus (and as amended or in any amendment supplemented if amended or supplement thereto supplemented) or in any preliminary prospectus, prospectus or arises out of or is based upon caused by any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, 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 of KHC Registrable Securities furnished in writing to KHC by such holder expressly for use therein. If the Public Offering pursuant to any registration statement provided for under this Article IV 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 KHC Registrable Securities) shall affect the obligations of KHC to indemnify any holder of KHC 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 IV is made through underwriters, KHC agrees to enter into an underwriting agreement in customary form with such underwriters and KHC agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the Company meaning of Section 15 of the Securities Act to the same extent as herein before provided with respect to the indemnification of the holders of KHC Registrable Securities; provided that KHC shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending 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, expense, liability, claim liability (or action proceedings in respect thereof; provided, however, that (i) insofar as any or expense for which indemnification is claimed results from such loss, damage, expense, liability, claim underwriter's failure to send or action arises out give a copy of an amended or is based upon any supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such KHC Registrable Securities to such person, a copy of the Person if such statement or omission was corrected in such amended or supplemented final prospectus if the Company had previously furnished copies thereof prior to such Holder; written confirmation and the underwriter was provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to with such Indemnified Partyamended or supplemented final prospectus.
(b) Each HolderIn connection with any registration statement in which a holder of KHC Registrable Securities is participating, each such holder, severally and not jointly, agrees to shall indemnify, defend to the fullest extent permitted by law, KHC, each underwriter and hold harmless the Companytheir respective officers, its directors, officersemployees and agents, employeesif any, representativesand each Person, agents and any person if any, who controls the Company KHC or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachAct, a “Company Indemnified Party”) from and against any losslosses, damageclaims, expensedamages, liability, claim liabilities (or any actions proceedings in respect thereof (including the reasonable cost of investigationthereof) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinfact, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state of a material fact required to be stated in any Shelf Registration Statement the registration statement or in prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, in connection with such information; and, subject but only to the limitation set forth immediately preceding this clauseextent that such untrue statement is contained in or such omission is from information so concerning a holder furnished in writing by such holder expressly for use therein; provided that such holder's obligations hereunder shall be limited to an amount equal to the net proceeds to such holder of the KHC Registrable Securities sold pursuant to such registration statement; and provided further that, each Holder without such holder's consent, such holder shall reimbursenot be required to indemnify KHC, as incurredany such underwriter, the Company for any legal or other expenses reasonably incurred by the Company or any of their officers, directors or employees or any Person who controls KHC or such controlling person in connection with investigating or defending any underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, expense, liability, claim liability (or action proceedings in respect thereof. This indemnity agreement will be in addition ) or expense for which indemnification is claimed results from such underwriter's failure to any liability which such Holder may otherwise have send or give a copy of an amended or supplemented final prospectus to the Company Person asserting an untrue statement or any alleged untrue statement or omission or alleged omission at or prior to the written confirmation of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the KHC Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligationPerson 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.
(c) If Any Person entitled to indemnification under the provisions of this Section 4.7 shall (i) give prompt notice to the indemnifying party of any action, suit or proceeding claim with respect to which it seeks indemnification and (each, ii) unless in such indemnified party's reasonable judgment a “Proceeding”) is brought against any person conflict of interest between such indemnified and indemnifying parties may exist in respect of which indemnity may be sought pursuant such claim, permit such indemnifying party to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingclaim, with counsel reasonably satisfactory to the indemnified party; providedand if such defense is so assumed, however, that the omission to notify such Indemnifying Party indemnifying party shall not relieve enter into any settlement without the consent of the indemnified party if such Indemnifying Party from settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any liability for any settlement made without its consent (which it may have shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article IV shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such Indemnified Party or otherwise. Such Indemnified Party indemnifying party shall have the right not be obligated to employ its own counsel in any such case, but pay the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses firm of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt all parties indemnified by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding indemnifying party in respect of which such Indemnified Party is or could have been claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release any other of such Indemnified Party from all liability on claims that are the subject matter of indemnified parties in respect to such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyclaim.
(d) If for any reason the indemnification provided for in this Section 6 foregoing indemnity is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to thereinunavailable, then each applicable Indemnifying Party, in lieu of the indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company indemnifying party on the one hand and the Holders or the Initial Purchasers indemnified party on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable lawApplicable Law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the Company on indemnifying party and the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, indemnified party as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6foregoing, no Holder holder of KHC Registrable Securities shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise such holder would have been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionto an indemnified party if the indemnity under Section 4.7(b) was available. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations obligation of any Person to contribute pursuant to this Section 6 are 4.7 shall be several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in .
(e) An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 6 are not exclusive and shall not limit any rights 4.7 to or remedies which may otherwise be available to any for the account of the indemnified party at law from time to time promptly upon receipt of bills or in equityinvoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution provisions agreements contained in this Section 6 4.7 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser a participating holder of KHC Registrable Securities, its officers, directors, members, agents or any person controlling any Holder or Initial PurchaserPerson, or if any, who controls such holder as aforesaid, and shall survive the Company, or Transfer of Equity Securities by such holder and the Company’s officers or directors or any person controlling the Company and (iii) the sale termination of any Registrable Security by any Holderthis Agreement.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to shall indemnify, defend and hold harmless each Initial Purchaserto the fullest extent permitted by law, each Holderholder of Registrable Securities, its officers, directors, partners, employees and agents, if any, and each personPerson, if any, who controls any Initial Purchaser or Holder such holder within the meaning of Section 15 of the Securities Act Act, against all losses, claims, damages, liabilities (or Section 20 of the Exchange Act (a “Controlling Person”proceedings in respect thereof) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person expenses (each, an “Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or common law or otherwise), insofar as such lossjoint or several, damage, expense, liability, claim resulting from any violation by the Company of the provisions of the Securities Act or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement registration statement or Prospectus, including any document incorporated by reference therein, prospectus (and as amended or in any amendment supplemented if amended or supplement thereto supplemented) or in any preliminary prospectus, prospectus or arises out of or is based upon caused by any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, 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 of Registrable Securities 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 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 to the same extent as herein before provided with respect to the indemnification of the holders of Registrable Securities; provided that the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending 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, expense, liability, claim liability (or action proceedings in respect thereof; provided, however, that (i) insofar as any or expense for which indemnification is claimed results from such loss, damage, expense, liability, claim underwriter's failure to send or action arises out give a copy of an amended or is based upon any supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the Person if such statement or omission was corrected in such amended or supplemented final prospectus if the Company had previously furnished copies thereof prior to such Holder; written confirmation and the underwriter was provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to with such Indemnified Partyamended or supplemented final prospectus.
(b) Each HolderIn connection with any registration statement in which a holder of Registrable Securities is participating, each such holder, severally and not jointly, agrees to shall indemnify, defend and hold harmless to the fullest extent permitted by law, the Company, its each underwriter and their respective officers, directors, officersemployees and agents, employeesif any, representativesand each Person, agents and any person if any, who controls the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (eachAct, a “Company Indemnified Party”) from and against any losslosses, damageclaims, expensedamages, liability, claim liabilities (or any actions proceedings in respect thereof (including the reasonable cost of investigationthereof) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinfact, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state of a material fact required to be stated in any Shelf Registration Statement the registration statement or in prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein not misleading, or arises out (in the case of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, ) not misleading, in connection with such information; and, subject but only to the limitation set forth immediately preceding this clause, each Holder extent that such untrue statement is contained in or such omission is from information so concerning a holder furnished in writing by such holder expressly for use therein; provided that such holder's obligations hereunder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition limited to any liability which such Holder may otherwise have an amount equal to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the net proceeds received by to such Holder upon the sale holder of the Registrable Securities sold pursuant to the Shelf Registration Statement giving rise to such indemnification obligationregistration statement.
(c) If Any Person entitled to indemnification under the provisions of this Section 3.7 shall (i) give prompt notice to the indemnifying party of any action, suit or proceeding claim with respect to which it seeks indemnification and (each, ii) unless in such indemnified party's reasonable judgment a “Proceeding”) is brought against any person conflict of interest between such indemnified and indemnifying parties may exist in respect of which indemnity may be sought pursuant such claim, permit such indemnifying party to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceedingclaim, with counsel reasonably satisfactory to the indemnified party; providedand if such defense is so assumed, however, that the omission to notify such Indemnifying Party indemnifying party shall not relieve enter into any settlement without the consent of the indemnified party if such Indemnifying Party from settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any liability for any settlement made without its consent (which it may have shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article III shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such Indemnified Party or otherwise. Such Indemnified Party indemnifying party shall have the right not be obligated to employ its own counsel in any such case, but pay the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses firm of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt all parties indemnified by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding indemnifying party in respect of which such Indemnified Party is or could have been claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release any other of such Indemnified Party from all liability on claims that are the subject matter of indemnified parties in respect to such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyclaim.
(d) If for any reason the indemnification provided for in this Section 6 foregoing indemnity is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or actions referred to thereinunavailable, then each applicable Indemnifying Party, in lieu of the indemnifying such Indemnified Party, party shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company indemnifying party on the one hand and the Holders or the Initial Purchasers indemnified party on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable lawApplicable Law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the Company on indemnifying party and the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, indemnified party as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Holders or such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6foregoing, no Holder holder of Registrable Securities shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise such holder would have been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionto an indemnified party if the indemnity under Section 3.7(b) was available. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations obligation of any Person to contribute pursuant to this Section 6 are 3.8 shall be several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in .
(e) An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 6 are not exclusive and shall not limit any rights 3.7 to or remedies which may otherwise be available to any for the account of the indemnified party at law from time to time promptly upon receipt of bills or in equityinvoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution provisions agreements contained in this Section 6 3.7 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser a participating holder of Registrable Securities, its officers, directors, agents or any person controlling Person, if any, who controls such holder as aforesaid, and shall survive the Transfer of Equity Securities by such holder and the termination of this Agreement for any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holderreason.
Appears in 1 contract
Indemnification; Contribution. (a) The If any Registrable Securities are included in a registration statement under this Agreement, including a Shelf Registration:
9.1. To the extent permitted by applicable law, the Company agrees to indemnify, defend shall indemnify and hold harmless each Initial Purchaser, each Selling Holder, each personPerson, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, employee, agent and consultant of such Selling Holder and such controlling Person, against any Initial Purchaser and all losses, claims, damages, liabilities and expenses (joint or Holder several), including attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto;
(ii) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or
(iii) Any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law; PROVIDED, HOWEVER, that the indemnification required by this SECTION 8.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; PROVIDED, FURTHER, that the indemnity agreement contained in this SECTION 8 shall not apply to any underwriter to the extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”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 respective officersCompany, each of its directors, partnerseach of its officers who shall have signed the registration statement, employeeseach Person, representatives and agents if any, who controls the Company within the meaning of the Initial PurchasersSecurities Act, the Holders or any Controlling 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 (each, an “Indemnified Party”joint and several), from including attorneys' fees and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost disbursements and expenses of investigation) , incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which such Indemnified Party any of the foregoing Persons may incur or otherwise become subject to under the Securities Act, the Exchange Act or otherwiseother 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 EXECUTION COPY any such loss, claim, damage, expenseliability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, liabilitywhich consent shall not be unreasonably withheld.
9.3. Promptly after receipt by an indemnified party under this SECTION 8 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this SECTION 8, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or action arises out potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of or is based upon any untrue statement or alleged untrue statement such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of a material fact contained in any Shelf Registration Statement or Prospectus, liability to the indemnified party under this SECTION 8 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this SECTION 8. Any fees and expenses incurred by the indemnified party (including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, fees and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any preparing to defend such loss, damage, expense, liability, claim action or action in respect thereof; provided, however, that (iproceeding) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder shall be paid to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburseindemnified party, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have within thirty (30) days of written notice thereof to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any actionindemnifying party; PROVIDED, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, howeverHOWEVER, that if it is ultimately determined that an indemnified party is not entitled to indemnification hereunder such indemnified party shall be obligated to repay the omission to notify indemnifying party. Any such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party indemnified party shall have the right to employ its own separate counsel in any such caseaction, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense expenses of such Indemnified Party indemnified party unless (i) the employment of indemnifying party has agreed to pay such counsel fees and expenses or (ii) the indemnifying party shall have been authorized in writing by such Indemnifying Party in connection with failed to promptly assume the defense of such Proceeding action, claim or proceeding or (iii) the named parties to any such Indemnifying Party shall not have employed counsel to have charge of action, claim or proceeding (including any impleaded parties) include both such indemnified party and the defense of indemnifying party, and such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party indemnified party shall have reasonably concluded upon the written advice of been advised by counsel that there may be one or more legal defenses available to it that which are different from, additional to from or in conflict with addition to those available to the indemnifying party and that the assertion of such Indemnifying Party defenses would create a conflict of interest such that counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which case case, if such Indemnifying Party 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 direct that portion of assume the defense of such Proceeding action, claim or proceeding on behalf of the Indemnified Partysuch indemnified party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that the indemnifying party shall not, in connection with any one such Indemnifying Party shall not action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the same jurisdiction arising out of the same general EXECUTION COPY allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate counsel in any one Proceeding or series firm of related Proceedings attorneys (together with reasonably necessary appropriate local counsel representing the Indemnified Parties who are parties to counsel) at any time for all such action)indemnified parties. An Indemnifying Party No indemnifying party shall not be liable to an indemnified party for any settlement of such Proceeding effected any action, proceeding or claim without the written consent of such Indemnifying Partythe indemnifying party, but if settled with the written which consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partybe unreasonably withheld.
(d) 9.4. If the indemnification provided for in required by this Section 6 SECTION 8 from the indemnifying party is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 indemnified party hereunder in respect of any losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses referred to therein, then each applicable Indemnifying Partyin this SECTION 8:
(i) The indemnifying party, in lieu of indemnifying such Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand indemnifying party and of the Holders or the Initial Purchasers on the other indemnified parties in connection with the statements or omissions actions which resulted in such losses, claims, damages, liabilities or expenses, liabilities, claims or actions, as well as any other relevant equitable considerationsthe relative benefits received by indemnifying party and indemnified parties. The relative fault of the Company on the one hand such indemnifying party and of the Holders or any Initial Purchaser on the other indemnified parties shall be determined by reference to, among other things, whether the untrue statement any Violation has been committed by, or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company by, such indemnifying party or by the Holders or such Initial Purchaser indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, expenses, liabilities, claims liabilities and actions expenses referred to above shall be deemed to include include, subject to the limitations set forth in SECTION 8.1 and SECTION 8.2, any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating any investigation or defending any Proceedingproceeding.
(eii) The Company, the Holders and the Initial Purchasers parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6 SECTION 8.4 were determined by pro rata allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionSECTION 8.4(i). No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation.
9.5. If indemnification is available under this SECTION 8, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 8 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in SECTION 8.4.
9.6. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to of the respective amount Company and the Selling Holders of Registrable Securities they have sold under this SECTION 8 shall survive the completion of any offering of Registrable Securities pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of registration statement under this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.otherwise. EXECUTION COPY
Appears in 1 contract
Sources: Registration Rights Agreement (National Record Mart Inc /De/)
Indemnification; Contribution. (a) The Company agrees and the Issuer agree to indemnify, defend and hold harmless each Initial Purchaser, each Holder, each personperson (a “Controlling Person”), if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the any Initial PurchasersPurchaser, the Holders or any Controlling Person (each, an a “Holder Indemnified Party”), from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Holder Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they such statements were made, not misleading, and the Company and the Issuer shall reimburse, as incurred, the Holder Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (ithe Company and the Issuer shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon (i) any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any an Initial Purchaser or a Holder to the Company expressly for use therein and in, any Shelf Registration Statement or any Prospectus or (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating a disposition, pursuant to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concernedby a Holder Indemnified Party during a Suspension Period, to the extent that a prospectus relating provided such Holder Indemnified Party received, prior to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection disposition, a Suspension Notice with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given respect to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such HolderSuspension Period; provided further, however, that this indemnity agreement will be in addition to any liability which the Company and the Issuer may otherwise have to such Holder Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the CompanyCompany and the Issuer, each of its directors, officers, employees, representatives, agents and any person who controls the Company and the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in in, any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto Prospectus or necessary to make the statements therein such Holder Information not misleading, (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or arises out with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), or is based upon any omission or alleged omission to state (C) a material fact necessary in order to make public sale of Registrable Securities by such Holder without delivery, if required by the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectusSecurities Act, in the light of the circumstances under which they were mademost recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(i) or Section 2(d)(i)(C), not misleading, provided the Company shall have theretofore provided such Holder with copies of such Prospectus in connection with a timely manner so as to permit such informationdelivery; and, subject to the limitation set forth in the immediately preceding this clause, each Holder shall reimburse, as incurred, the Company and the Issuer for any legal or other expenses reasonably incurred by the Company and the Issuer or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company and the Issuer or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities sale, pursuant to the Shelf Registration Statement Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (aSection 6(a) or (b) of this Section 66(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such The Indemnifying Party shall be entitled to appoint counsel (including local counsel) of the Indemnifying Party’s choice at the Indemnifying Party’s expense to represent the Indemnified Party in any action for which indemnification is sought (in which case the Indemnifying Party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the Indemnifying Party, retained by the Indemnified Party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Party. Notwithstanding the Indemnifying Party’s election to appoint counsel (including local counsel) to represent the Indemnified Party in an action, the Indemnified Party shall have the right to employ its own separate counsel in any such case(including local counsel), but and the fees Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An ) if (i) the use of counsel chosen by the Indemnifying Party shall not be liable for to represent the Indemnified Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any settlement of such Proceeding effected without action include both the written consent of such Indemnifying Party, but if settled with Indemnified Party and the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to the Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by Party; (iii) the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such employed counsel satisfactory to the Indemnified Party in accordance with such request prior to represent the date Indemnified Party within sixty (60) days after notice of the institution of such settlement and action; or (iiiiv) such the Indemnifying Party shall authorize the Indemnified Party shall have given such to employ separate counsel at the expense of the Indemnifying Party at least 30 days’ prior notice of its intention to settleParty. No Indemnifying Party shall, without the prior written consent of any the Indemnified Party, effect any settlement of any pending or threatened Proceeding action in respect of which such any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, Party unless such settlement (i) includes an unconditional release of such Indemnified Party from all liability on any claims that are the subject matter of such Proceeding and action, (ii) does not include a statement as to, or an admission of of, fault, culpability or a failure to act, act by or on behalf of such an Indemnified Party, and (iii) does not include any undertaking or obligation to act or to refrain from acting by the Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party under subsections (aSection 6(a) and (b) of this or Section 6 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Issuer, on the one hand hand, and by the Holders or the Initial Purchasers Purchaser, on the other hand hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Issuer, on the one hand hand, and of the Holders or the Initial Purchasers Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company and the Issuer, on the one hand hand, and of the Holders or any the Initial Purchaser Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company and the Issuer or by the Holders or such the Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Issuer, the Holders and the Initial Purchasers Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (dSection 6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by it such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Issuer, or the Company’s or the Issuer’s officers or directors or any person controlling the Company or the Issuer and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Sl Green Realty Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify, defend Amicus shall indemnify and hold harmless each Initial PurchaserHolder (including the employees, agents, representatives, officers and directors of GSK and its Affiliates) (each Holder, each person, if any, who controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling PersonGSK Indemnitee”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arising out of or is based upon any untrue statement untrue, or alleged untrue allegedly untrue, statement of a material fact contained in any Shelf Registration Statement Statement, prospectus or Prospectus, including preliminary prospectus or notification or offering circular (as amended or supplemented if Amicus shall have furnished any document incorporated by reference therein, amendments or in any amendment supplements thereto) or supplement thereto or in any preliminary prospectus, or arises arising out of or is based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or arises contained in any information concerning such Holder furnished in writing to Amicus by such Holder expressly for use in such Registration Statement. ****** - Material has been omitted and filed separately with the Commission.
(b) Each Holder shall indemnify and hold harmless Amicus, and its respective directors, officers, employees and each Person who controls Amicus (within the meaning of the Securities Act and the Exchange Act) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) arising out of or is based upon any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus or notification or offering circular (as amended or supplemented if Amicus shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, if such statement or arises out of or is based omission was made in reliance upon and in conformity with any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which information concerning such Holder may otherwise have furnished in writing to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received Amicus by such Holder upon specifically for use in the sale preparation of the Registrable Securities pursuant to the Shelf such Registration Statement giving rise to such indemnification obligationor prospectus.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant Each Person entitled to either subsection (a) or (b) of this Section 6, such person indemnification hereunder (the “Indemnified Party”) shall promptly notify agrees to give prompt written notice to the person against whom such indemnity may be sought indemnifying party (the “Indemnifying Party”) after the receipt by the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing of for which the institution of such Proceeding and the Indemnifying Indemnified Party shall assume the defense of such Proceedingintends to claim indemnification or contribution pursuant to this Agreement; provided, however, that the omission failure to so notify such the Indemnifying Party shall not relieve such the Indemnifying Party from of any liability which that it may have to the Indemnified Party hereunder unless, and only to the extent that, such failure results in the Indemnifying Party’s forfeiture of substantive rights or defenses. If notice of commencement of any such action is given to the Indemnifying Party as above provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may wish, jointly with any other Indemnifying Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party or otherwiseParty. Such The Indemnified Party shall have the right to employ its own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel (other than reasonable costs of investigation) shall be at paid by the expense Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory to the Indemnified Party in its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party unless and the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with by the defense same counsel would be inappropriate under applicable standards of such Proceeding professional conduct or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that (y) there may be one or more legal defenses available to it that which are different from, from or additional to or in conflict with those available to the Indemnifying Party. In either of such Indemnifying Party (in which case such cases, the Indemnifying Party shall not have the right to direct that portion of assume the defense of such Proceeding action on behalf of the such Indemnified Party, but such . No Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected entered into without its written consent if (i) such settlement is entered into more other than 60 Business Days after receipt by such in the case where the Indemnifying Party of the aforesaid requestis unconditionally released from liability and its rights are not adversely effected), (ii) such Indemnifying Party which consent shall not have reimbursed such Indemnified Party in accordance be unreasonably withheld. ****** - Material has been omitted and filed separately with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified PartyCommission.
(d) If the indemnification provided for in this Section 6 7.5 from the Indemnifying Party pursuant to applicable law is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 hereunder in respect of any losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses referred to therein, then each applicable the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand Indemnifying Party and of the Holders or the Initial Purchasers on the other Indemnified Party in connection with the statements or omissions actions which resulted in such losses, claims, damages, liabilities or expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault faults of the Company on the one hand such Indemnifying Party and of the Holders or any Initial Purchaser on the other Indemnified Party shall be determined by reference to, among other things, whether the any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by the Company by, such Indemnifying Party or by the Holders or such Initial Purchaser Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The amount paid or payable by a party as a result of the losses, claims, damages, expenses, liabilities, claims liabilities and actions expenses referred to above shall be deemed to include include, subject to the limitations set forth in Sections 7.5(a), (b) and (c), any reasonable legal or other fees fees, charges or expenses reasonably incurred by such party in connection with investigating any investigation or defending any Proceeding.
(e) proceeding. The Company, the Holders and the Initial Purchasers parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6 7.5(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equityPerson.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and (iii) the sale of any Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify, defend indemnify and hold harmless each Initial Purchaserseller of Registrable Securities covered by a Registration Statement filed pursuant to this Agreement, each Holderand such seller's partners, each persondirectors, if anyofficers, employees and any Person who controls any Initial Purchaser or Holder within the meaning of Section 15 of such seller under the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), "Indemnitee") from and against any lossand all losses, damageclaims, expensedamages, liability, claim or any actions in respect thereof liabilities and expenses (including the reasonable cost costs of investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises arising out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement prepricing prospectus, registration statement or Prospectus, including any document incorporated by reference therein, prospectus or in any amendment or supplement thereto or in any preliminary prospectusthereto, or arises arising out of or is based upon any omission or alleged omission to state therein a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or arises expenses rise out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action arises out of or is are based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, which has been made therein or omitted from, therefrom in reliance upon and in conformity with the information relating to a participating Holder furnished in writing to the Company by or on behalf of any Initial Purchaser or a participating Holder to the Company expressly for use therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the connection therewith. The foregoing indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Partyhave.
(b) If any action, suit or proceeding shall be brought against an Indemnitee in respect of which indemnity may be sought against the Company, such Indemnitee shall promptly notify the Company, and the Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. The Indemnitee shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (x) the Company has agreed in writing to pay such fees and expenses, (y) the Company has failed to assume the defense and employ counsel, or (z) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by its counsel that representation of such Indemnitee and the Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnitee). It is understood, however, that the Company shall, in connection with any one such action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnitees not having actual or potential differing interests among themselves, and that all such fees and expenses shall be reimbursed as they are incurred. The Company shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent, but if settled with such written consent, or if them be a final judgment for the plaintiff in any such action, suit or proceeding, the Company agrees to indemnify and hold harmless such Indemnitee, to the extent provided in the preceding paragraph, from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each Holderof the participating Holders, severally and not jointly, agrees agree to indemnify, defend indemnify and hold harmless the Company, its directors, officersits officers who sign the registration statement, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company Indemnified Party may incur or become subject to under the Securities Act, to the Exchange Act or otherwisesame extent as the foregoing indemnity from the Company to an Indemnitee, insofar as but only with respect to information relating to such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information Holder furnished in writing by or on behalf of such Holder to the Company expressly for use in the registration statement, prospectus or any Shelf Registration Statement or Prospectus, including any document incorporated by reference thereinprepricing prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereofthereto. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is shall be brought against the Company, any of its directors, any such officer, or any such controlling person based on the registration statement, prospectus or any prepricing prospectus, or any amendment or supplement thereto, and in respect of which indemnity may be sought against any Holder pursuant to either subsection (a) or (b) of this Section 69(c), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party Holder shall have the right rights and duties given to the Company by Section 9(b) hereof (except that if the Company shall have assumed the defense thereof such Holder shall not be required to do so, but may employ its own separate counsel therein and participate in any such casethe defense thereof, but the fees and expenses of such counsel shall be at the expense of Holder's expense), and the Company, its directors, any such Indemnified Party unless the employment of officer, and any such counsel controlling person shall have been authorized in writing the rights and duties given to an Indemnitee by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel Section 9(b) hereof. The foregoing indemnity agreement shall be at in addition to any liability which the expense of such Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Partyparticipating Holders may otherwise have.
(d) If the indemnification provided for in this Section 6 9 is unavailable to an Indemnified Party indemnified party under subsections paragraphs (a) and or (bc) of this Section 6 hereof in respect of any losses, claims, damages, expenses, liabilities, claims liabilities or actions expenses referred to therein, then each applicable Indemnifying Partyan indemnifying party, in lieu of indemnifying such Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party indemnified party as a result of such losses, claims, damages, expenses, liabilities, claims liabilities or actions (i) expenses in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders or the Initial Purchasers on the other hand from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the participating Holders or the Initial Purchasers on the other in connection with the statements or omissions which that resulted in such losses, claims, damages, liabilities or expenses, liabilities, claims or actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser a participating Holder on the other hand shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission -omission to state a material fact relates to information supplied by the Company on the one hand or by such participating Holder on the Holders or such Initial Purchaser other hand and the parties’ ' relative intent, knowledge, access to or information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders Company and the Initial Purchasers participating Holders agree that it would not be just and equitable if contribution pursuant to this Section 6 9 were determined by a pro rata allocation or by any other method of allocation which that does not take account of the equitable considerations referred to in subsection (dSection 9(d) hereof. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to in Section 9(d) hereof shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating any claim or defending any such action, suit or proceeding. Notwithstanding the provisions of this Section 69, no participating Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered proceeds to the public such participating Holder exceeds the amount of any damages which it such participating Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an-unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section 9 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 provisions agreements contained in this Section 6 9 shall remain operative and in full force and effect effect, regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Initial Purchaser or any person controlling any Holder or Initial Purchaseran Indemnitee, or the Company, its directors or the Company’s officers or directors officers, or any person controlling the Company Company, and (iiiii) the sale any termination of any Registrable Security by any Holderthis Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Corporate Office Properties Trust)